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Desmond v. Town of West Bridgewater

Superior Court of Massachusetts, Suffolk

April 21, 2016

Daniel Desmond
v.
Town of West Bridgewater et al. [1] No. 133794

          April 22, 2016, Filed

          MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS

          Douglas H. Wilkins, Justice

         The 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] . . ." [2] Serious as these charges are, [3] 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.

         This 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.

         BACKGROUND

         Desmond was employed as a West Bridgewater Patrolman for 17 years before his termination in February 2014. He had no significant prior disciplinary record.

         The 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 209A Application.

         Later 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."

         West 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."

         On 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.

         The 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." [4] 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 Mrs. A.

         The 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.

         The 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.

         Mr. 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. ...


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