Massachusetts Chief Loses First Amendment Suit

A lawsuit filed by a former Massachusetts fire chief who was terminated in 2019, has been dismissed by the US District Court for the District of Massachusetts. Ernest J. Cardillo, Jr., was terminated by the Town of Stockbridge on February 5, 2019.

Under a rather unusual arrangement, Chief Cardillo was permitted to serve on the town’s three-person Select Board while serving as fire chief. Oddly enough it was the Select Board that ultimately voted to terminate him.

Chief Cardillo and the Stockbridge Fire Department were apparently the victim of a purchasing scam dating back to 2012. Over the course of several years, the scam cost taxpayers over $25,000. In 2018, the scam came to light prompting the Select Board to order the town’s legal counsel to investigate what happened and the fire chief’s role. As explained in the ruling:

  • Several days after Town Counsel’s report, on December 6, 2018, the Board held an executive session meeting where the Plaintiff, [and the two remaining members of the Select Board, Donald Chabon and Terrence Flynn] discussed Plaintiff’s future as an employee of the Town and as a Board member.
  • During the meeting, Flynn discussed a proposal whereby Plaintiff would stay on as a town employee in a newly created position as a full-time EMT, firefighter, and fire inspector, but only upon his resignation as a member of the Board and Fire Chief.
  • Flynn stated that resignation from both positions was “essential” to the offer.
  • While Chabon advised Plaintiff that he had every right to remain as a member of the Board, Flynn indicated that they had just cause to fire Plaintiff for violating the procurement laws under Mass. Gen. Laws ch. 30B if he did not resign as Fire Chief
  • On December 17, 2018, the Board held another executive session, in which they were joined by the Town Administrator and Town Counsel.
  • Plaintiff had requested to have the meeting postponed until he retained counsel, but his request was denied.
  • Plaintiff was presented with a proposed amendment to his employment contract that had been prepared by Town Counsel.
  • As discussed at the previous meeting, the amendment called for Plaintiff to resign from the Board and step down as Fire Chief but would have allowed him to retain a full-time position with the Fire Department without any loss of pay or benefits.
  • Plaintiff was given 21 days to review the proposal.
  • In the meantime, Chabon and Flynn voted to place Plaintiff on partial administrative leave, such that he would no longer serve as Fire Chief, but would continue to perform his other duties, despite the emergence of concerns about the Town’s safety.
  • Before the expiration of the 21-day period, Plaintiff, through counsel, wrote to the Board rejecting the proposed amendment to his employment contract.
  • Thereafter, Plaintiff was notified of an executive session of the Board to be held on February 5, 2019.
  • On that date, in another executive session with Chabon and Flynn acting as the Board, a hearing was held at which Plaintiff was present and represented by counsel.
  • Town counsel examined Plaintiff, and Plaintiff was given the opportunity to present testimony and evidence.
  • At the hearing’s conclusion, Chabon and Flynn voted to terminate Plaintiff’s employment, effective immediately.
  • Two weeks later, on February 19, 2019, Chabon and Flynn sent Plaintiff a letter drafted by Town counsel containing the final written decisions of the Board

Chief Cardillo filed suit alleging a violation of his First Amendment Rights as well as state law breach of contract claims. His First Amendment claim was premised on the town violating his right to engage in political activities by penalizing him for not resigning his elected position on the Select Board.

The court rejected this argument concluding that the town produced sufficient evidence that Chief Cardillo would have been terminated even if he had not been on the Select Board.

  • Assuming arguendo that Plaintiff’s membership on the Board was protected conduct to the text of the note there are no facts which suggest that Plaintiff was fired as a result of his position on the Board.
  • Defendants have articulated a non-discriminatory ground for Plaintiff’s discharge, and proven by a preponderance of the undisputed evidence viewed in the light most favorable to Plaintiff that Plaintiff’s employment as Fire Chief would have been terminated as a result of his actions relative to the purchasing scam even if he did not simultaneously hold a seat on the Board.
  • No reasonable juror could find that Plaintiff would not have been fired as Fire Chief if he was not a member of the Board.

The court opted not to consider Chief Cardillo’s state law breach of contract claims, leaving him free to refile them in state court. Here is a copy of the ruling:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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