Termination of Massachusetts Firefighter Upheld

The termination of a Massachusetts firefighter who was charged with domestic assault has been upheld by the state’s civil service commission.

North Attleborough firefighter Glenn Lavery, 49, was fired on December 3, 2015 following a domestic incident that occurred on November 21, 2015. The incident resulted in the arrest of both Lavery and his estranged girl friend referred to in the decision as Jane Doe.

Lavery was charged with conduct unbecoming for “attempting to strangle this female by placing your hands around her neck, kneeling on her stomach and covering her mouth with your hand… [which] constituted the seventh domestic incident involving you and Ms. [Doe] in the past few years… [and] witness intimidation.”

Lavery appealed his termination to the Massachusetts Civil Service Commission and while that appeal was pending he was arrested again on January 3, 2016 for domestic assault.

The charges related to the November 21, 2015 assault were ultimately dismissed in March, 2016 because the woman refused to testify. Thereafter, the Town of North Attleborough instituted a second disciplinary proceeding against Lavery on April 19, 2016 citing the January 3, 2016 arrest.

On April 28, 2016 the town’s Board of Selectmen voted to drop the second termination proceedings, relying instead on the December 3, 2015 termination. Lavery ended up admitting to sufficiency of the January 3, 2016 assault allegations on July 29, 2016.

The issue before the Civil Service Commission was whether the town had just cause to terminate Lavery. In a 31 page decision issued last week, Commissioner Paul M. Stein wrestled with a number of issues, including the applicability of conduct unbecoming as a disciplinary charge for off-duty conduct; the sufficiency of evidence to terminate Lavery for the November 21, 2015 incident; and the use of a subsequent incident (the January 3, 2016 incident) as evidence that relates to a prior occurrence.

From the ruling:

• North Attleborough has met its burden to show by a preponderance of evidence just cause to terminate Mr. Lavery as an NAFD firefighter.
• Although the alleged acts amounting to a violent criminal assault against Ms. Doe and an attempt to intimidate her that formed the basis for termination were not proved, North Attleborough did prove that Mr. Lavery engaged in an intolerable act of domestic violence that fits well within the definition of “conduct unbecoming” a firefighter that justified his termination.
• The term “conduct unbecoming”… does not “render virtually any public indiscretion sufficient to support discharge . . . . “[C]onduct unbecoming” can be considered so “impermissibly vague” as to be unenforceable.
• As noted above, a rule prohibiting “conduct unbecoming” covers some, but not all off-duty misconduct.
• The violent criminal acts with which Mr. Lavery was charged [for the November 21, 2016 incident] surely would meet that standard but the evidence does not warrant a finding that he committed those specific acts.
• Had Mr. Lavery not been involved in another incident of alleged domestic abuse, for which he admitted to sufficient facts to warrant a finding of guilty on charges of assault and battery, my assessment would have been limited to the evidence presented through the NAPD to the Commission on the November 21, 2015 incident.
• I would have been inclined to conclude that North Attleborough did not prove by a preponderance of evidence that Mr. Lavery had used a degree of force that would have left any “red” marks on Ms. Doe’s neck during their struggle.
• To be sure, it would have been preferable for the NAPD to have conducted more thorough interviews to flesh out all of the complete details on this critically conflicting, and strenuously disputed, version of events while the altercation was still fresh.
• Nevertheless, every NAPD police officer credibly testified to seeing some sort of a red mark on Ms. Doe’s neck.
• This undisputed fact, together with the fact that Mr. Lavery admitted to domestic violence in an incident barely one month after his very similar altercation with Ms. Doe, tips the calculus on this very close call. I conclude that Mr. Lavery’s testimony that he would “never” hit a woman is not credible.
• I am mindful that, as a general rule, the Commission is charged with conducting a de novo hearing to “finding afresh the facts upon which the employment action was based.”
• The authority to inquire into “after acquired” evidence is somewhat uncertain.
• Under the particular circumstances of this case, including the close similarity and temporal proximity of both incidents, as well as the unique challenges to fact-finding in cases of domestic violence, common sense dictates that I do not overlook the second incident.
• Rather, I am persuaded that it is fair to consider the January 3, 2016 incident, together with Mr. Lavery’s subsequent admission to facts sufficient to find him guilty of domestic violence, at least, for the limited purpose of informing my own credibility assessment of Mr. Lavery’s testimony and state of mind concerning the November 21, 2015 incident that occurred one month earlier.
• My consideration of the January 3, 2016 incident is limited to its relevance to the decision about the issues presently before the Commission.
• I have not reached any conclusion as to whether the merits of that incident would, or would not, support independent, alternative reasons for termination of Mr. Lavery’s employment, something that would have required North Attleborough to have proceeded with the second disciplinary proceeding and rendered a further decision imposing such conditional discipline.

Here is a copy of the decision: lavery_glenn_092817

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