22, 2016, Filed
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S
MOTION FOR JUDGMENT ON THE PLEADINGS
Douglas H. Wilkins, Justice
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]
. . ."  Serious as these charges are,
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.
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.
was employed as a West Bridgewater Patrolman for 17 years
before his termination in February 2014. He had no
significant prior disciplinary record.
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
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."
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."
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:
Desmond testified in District Court that he had never seen
Mrs. A.'s affidavit when, in fact, he had seen the
affidavit while she was preparing it and while Mrs. A. was in
a separate room talking to an on-call Judge.
Desmond testified in District Court that he never came into
the courthouse on September 9, 2013, when he came into the
courthouse with Mrs. A., escorted her to the Clerk's
office and left the building without entering the court room.
Desmond testified in District Court on November 8, 2013 that
he had never been to Mrs. A.'s house, when he had in fact
been there only six days earlier.
On December 23, 2013, in response to a question from Brockton
Police Officer Christopher Perez, Desmond denied being in the
neighborhood when in fact he had been, as verified by a
license plate reported by a neighbor. Only then did Desmond
admit that he had been there. On December 25, 2013,
Desmond's report of the events omitted the exchange
between Officer Perez and himself. The Commission credited
Officer Perez's version of these events.
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."  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
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.
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.
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.