Jul 042015

The multi-million dollar controversy between the town and the Firefighter Four — Deputy Chief Clarence Jefferson and firefighters Benjamin Miele, Stephen Tervo, and James Horan, who were terminated from their call firefighter positions with the town in spring 2014 — is entering its second year and is apparently headed back to federal court after an attempt at mediation reportedly failed.

Horan resigned, alleging “constructive discharge” (when an employee resigns as a result of the employer creating a hostile work environment) after a union organizing attempt in early 2014; Jefferson, Miele, and Tervo were not reappointed to their positions by then-chief Joe Bosselait in June 2014. They filed a muti-million dollar lawsuit in state court in September, 2014, naming all five members of the Board of Selectmen, Town Manager Mark Haddad, former fire chief Joe Bosselait, Fire Captain Susan Daly and Lieutenant Tony Hawgood (a married couple) as defendants. The suit was moved to federal court. Jefferson, Miele, and Tervo were rehired, suspended from duty, and summoned to a “Strong Chief” hearing that resulted in a recommendation late last year that they be returned to duty. Subsequently, federal mediation was proposed, and attempted this spring.

An inadvertent public release of minutes on June 21 from a Board of Selectmen’s executive session held June 1 yields some insight into the town’s position. The BoS formally released them the next day. Ten days later, on July 1, Rob Bowen, attorney for the four firefighters, distributed a “press release” that restated the firefighter’s position, with an implication that the case was headed back to federal court.

The Town’s Take on Mediation

This is the unedited text of the June 1 Executive Session minutes of the Board of Selectmen.

Mr. Haddad said that he, Ms. Eliot, Mr. Maser and Mr. Kesten had gone the previous Friday (May 27, 2015 — Ed.) to Worcester federal court to attend mediation with the Call Firefighters. He said that Judge Hennessey presided over the mediation which began at 10 a.m. He said that the Judge met with the Town first and the firefighters and their attorney second. He said that the mediation lasted 3½ hours and ended with no settlement. He said that the firefighters still wanted $1M a piece and the Town countered at $40K/$15K/$15K/$0. He said that they re-countered at $100K each to which the Town re-countered at $100K to be split among them. Mr. Haddad said that he, Mr. Maser and Mr. Kesten talked and thought they should provide the firefighters an order to return to work. Ms. Eliot said that a lot of discussion with the mediator and the Town centered on the strong chief. She said that the judge was also looking for minutes relative to the non-reappointment.

Mr. Maser said that he had nothing else to add other than he thought the mediation ended abruptly when the mediator realized he wasn’t going to be able to see the parties come to an agreement adding that no words were exchanged when either party left the room. Mr. Maser said that the original order to return to work issued to the firefighters was placed on hold pending mediation. He said that because they were unable to come to an agreement through mediation the return to work order was back on the table. Mr. Haddad said that based on what the mediator was presented with he did what he needed to do adding that he told the Town it took him a long time to get the firefighters down to $100K. Mr. Cunningham asked if there had been subsequent conversations between Counsel and Mr. Bowen. Mr. Haddad said that Mr. Bowen had not returned a call to Mr. Kesten yet.

Mr. Maser said that the next steps involved the mediator submitting his report to the presiding judge followed by a scheduling conference which has not been set up yet. Mr. Petropoulos asked if this meant they were going to trial. Mr. Maser said it did as of right now. Mr. Haddad said that any discussions with the mediator could not be used in trial as a point of information to the Board. Mr. Haddad said that the suit remained at $1M each because mediation was unsuccessful. Mr. Petropoulos asked about the cost moving forward. Mr. Maser said that the notice for depositions would come adding he thought there would be 10-15 depositions right off the bat. He said that there would be a request for documents from both sides and discovery could take more than a year. Mr. Haddad said that (according to the judge, this could cost somewhere between $15K and 20K. Mr. Maser said that after all that was completed then you had dispositive motions, assignment of a trial date and multiple pretrial meetings which takes time to set up. Mr. Petropoulos said that it sounded like the process could take anywhere from I year to 2½ years and cost anywhere from $50K to $100K which didn’t include the firefighter’s attorney fees which could cost the same. Mr. Maser agreed adding that they could also claim due process for 2 months.

Mr. Maser said that in 2014 when Mr. Kesten filed an offer of judgment, the firefighters were offered $7,501 (Miele and Tervo), $25,001 (Jefferson) and $0 (Horan). He said that if they recovered less than originally offered the attorney would get nothing.

Mr. Cunningham asked how they should handle their possible return to work adding there was anxiety within the department already. Chief McCurdy said that as he had stated before, it had now been over a year since they were active. He said there was a huge safety issue and money needed to train them. Chief McCurdy said that there was always the possibility of unknown medical events which would mean the Town would own them on 11lF claims. Mr. Cunningham asked Town Counsel if they would be required to receive the necessary training before returning back to active duty. Mr. Maser said that they would be required to complete training along with medical notes for clearance, fit for duty exams, etc. Mr. Degen asked if this would be something that the Town would be required to pay for. Chief McCurdy said that the Town would pay for things like this adding that it could cost about $10K to $15K. Mr. Cunningham asked if it would be academy training or in-house training. Chief McCurdy said it would be both. Mr. Petropoulos asked if this could add to their claim of being oppressed. Mr. Maser said that they agreed to a period of time adding that it still meant they needed to fulfill the training and safety requirements. Mr. Maser said that he didn’t know if they would retwn to work but it could be cause for termination if they didn’t. Mr. Schulman asked if the firefighter that quit would still receive nothing. Mr. Haddad said that they made that point clear to the judge. Mr. Schulman asked why Mr. Jefferson would return to work. He was being paid now and was only a year away from retirement. Mr. McCurdy if they could keep him on the books and not have him not do anything. Mr. Maser said that it would just compound his claims adding that punitive damages could also come into play. Ms. Eliot asked if there could be legal ramifications. Mr. Maser said that there could possibly be different duties under a different chief. Chief McCurdy was leery of that adding that if something went wrong while he was under the Chief it would fall back on him. Mr. Degen asked if between Mr. Maser and Chief McCurdy they could rewrite the job description. Chief McCurdy said that there was the possibility they could turn it around on them ad didn’t want to take that chance. Mr. Degen suggested that they order them to return to work pending safety and training requirements.

Mr. Degen called Mr. Kesten at 6:33 p.m. and told him that the Board was contemplating ordering the firefighters back to work. Ms. Eliot said that they were discussing resuming the original letter along with additional conditions that needed to be met before returning back to work. Mr. Kesten said that they agreed to hold off on the order to return to work pending mediation. He thought it was acceptable to ask them to meet with the Chief and include the necessary ce1tifications and medical clearance requirements. Mr. Petropoulos asked what would happen if they didn’t write to the firefighters at all. Mr. Kesten said that they could come back and say they didn’t hear from the Town at all. Mr. Kesten said that with the mediation over, they should send a letter providing them with a date by which to contact the Chief along with the discussed requirements.

Mr. Petropoulos asked if there were any other cases that required firefighters to update their training. Chief McCurdy said that there was only one case that he knew of but the difference was that the firefighter kept up on his/her certifications while he/she was out.

Mr. Degen asked if a letter could be done by the end of the next week. Mr. Haddad said that he thought one could be done sooner. Mr. Petropoulos said that he wanted to hear from the Chief as to whether he wanted this or not. Chief McCurdy said that he had protested this all along but if there was a legal responsibility for the Town to order them back to work then he would have to be okay with it. Mr. Degen asked if they legally had to have them back. Mr. Kesten said “yes.” Chief McCurdy said that he had hesitation in changing the job description to only have the call Deputy answer calls. He said he thought it was legally unsafe to have him run an incident scene. Mr. Degen asked if a deputy chief was needed. Mr. Kesten said that he wasn’t sure that the position could be eliminated. He said that he wasn’t sure that he wanted to come back. Mr. Degen said that it sounded as though everyone was inagreement with ordering them to return to work and see what happens. Mr. Maser said that he would talk with the Chief and get the letters out by the end of the week. Mr. Degen asked what the next step was if they didn’t return back to work.

Mr. Kesten said that they would not be employees and would deal with the litigation moving forward. The call with Mr. Kesten ended at 6:50 p.m.

Firefighter’s Press Release

This is the text of the “press release” sent to the media recently by attorney Bowen.

Clarence Jefferson, Benjamin Miele, Stephen Tervo and James Horan met recently with the Town before a mediator in the federal court in an effort to bring this matter to a close.  Unfortunately, that mediation was unsuccessful.  The four were upset to learn that the Town then released executive session minutes which, among other things, commented on that mediation which was supposed to be a private, nonbinding voluntary attempt to resolve their litigation with the Town.  It has always been their preference to protect their privacy, and to try their case in Court, not in public, but they feel compelled to comment.

  1. The town, by its own estimates in that meeting, was told that their legal fees would be between $50,000 and $100,000, and that the firefighters fees, for which they might be liable, would be in the same range.  They were told by their attorney that the firefighters could “claim due process” for two months.  That is, they conceded that the plaintiffs have valid claims.  The Chief estimated that it would cost the Town $10,000 to $15,000 just to take the men back.  Their attorney also warned the Town that punitive damages could come into play.  Punitive damages are damages that are intended to punish bad faith action, as opposed to merely compensating the plaintiffs for their out of pocket damages.  The town appears to be conceding wrong doing, but offering the plaintiffs well less than half of what they themselves think these claims are worth.  The plaintiffs were not going to negotiate publicly, but feel their hand has been forced by the wholly inappropriate release of the minutes.  They dramatically reduced their demand to just 10% of their million dollar claims in an effort to resolve this, but the Town would rather litigate the matter.

  2. The other thing made abundantly clear from the minutes is that the town does not want these good men back. They have never offered Mr. Horan anything.  And despite being told by their attorneys to take Mr. Jefferson, Mr. Miele and Mr. Tervo back, the town plainly does not want to.  This is a pattern.  When the firefighters filed their own grievances with the Board of Selectmen, they were rejected, prompting the law suit.  When the suit was filed, at least one member of the Board labeled it as frivolous.  Then they made a Federal case out of it, and granted three of the plaintiffs the hearing they were unconstitutionally denied.  When the hearing officer selected by the town found that the Town had failed to prove they had cause to fire the firefighters, and recommended their reinstatement, they were not wanted back.  The released minutes confirm there is, in their words, anxiety, about them returning.  The four are upset that their opportunities in Groton have been destroyed.

  3. Now, because their lawyer has told them to do it, not because their value to the Town is recognized, not because the Town wants them back, not because the Town is well served with them on the department, they have made something of a job offer. It is too little too late after the way they have been treated. It is contingent upon fitness for duty and other certifications, which would not have been an issue but for their unlawful termination.  The offer also refers to a new minimum activity policy which they have not been provided with.  This offer has all the sincerity of an apology the teacher tells the bully to make on the playground.  The firefighters have their own serious concerns about their safety, and the safety of the Town, if they were to return to a department that neither trusts them, nor wants them.  They will await their day in Court.