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CIVIL SERVICE COMMISSION One Ashburton Place: Room 503 Boston, MA 02108 (617) 727-2293
CHRISTOPHER PAGLIUCA, WILLIAM LEEMAN Appellants v. D-12-346 (Pagliuca) D-12-342 (Leeman)
CITY OF HAVERHILL, Respondent Appellant Christopher Pagliuca‟s Attorney: Joseph A. Padolsky, Esq. Louison, Costello, Condon & Pfaff, LLP 101 Summer Street, 4th Floor Boston, MA 02110 Stephen C. Pfaff, Esq. Louison, Costello, Condon & Pfaff, LLP 101 Summer Street, 4th Floor Boston, MA 02110 Rachel Munoz, Esq. Morgan, Brown & Joy, LLP 200 State Street Boston, MA 02109 Christopher C. Bowman PROPOSED DECISION Pursuant to the provisions of G.L. c. 31, § 43, the Appellant, Christopher Pagliuca (hereinafter “Pagliuca”), is appealing the decision of the City of Haverhill (hereinafter “City” or “Appointing Authority”) to suspend him for five (5) days for an incident that occurred on March 30, 2012 and involved alleged violations of Haverhill Police Department Rules and Regulations Rule 130 (Departmental Reports), Rule 111 (unsatisfactory performance) (Judgment) and
Appellant William Leeman‟s Attorney:
Cannon of Police Ethics Article X. The Appellant, William Leeman (hereinafter “Leeman”) is appealing the decision of the City to suspend him for ten (10) days for the same alleged violations as Pagliuca. The appeals were timely filed with the Civil Service Commission (hereinafter “Commission”) on December 17, 2012. A full hearing on the consolidated appeals was held on March 20, 2013 and March 21, 2013 at the offices of the Commission. As no written notice was received from either party, the hearing was declared private. Two (2) compact discs were made of the hearing. All witnesses were sequestered. Both parties submitted post-hearing briefs in the form of proposed decisions. FINDINGS OF FACT: Based upon the twenty-five (25) documents entered into evidence and the testimony of the following witnesses: For the Appointing Authority: Sergeant Daniel Cena, West Newbury Police Department; Chief Alan DeNaro, Haverhill Police Department; Officer Adam White, Merrimac Police Department Medic Erin Fortin, Trinity EMS Inc. Medic Carl Rizzo, Trinity EMS Inc. Sergeant Harry Miller, Haverhill Police Department Deputy Chief Donald Thompson
For the Appellant: Lieutenant Lee Mimms, Haverhill Fire Department Officer Christopher Pagliuca, Appellant Lieutenant William Leeman, Appellant Charles Noyes, Retired Lieutenant Colonel, Massachusetts State Police
I make the following findings of facts: 1. Christopher Pagliuca is a patrolman with the Haverhill Police Department. He has been so employed for the past eight years. Prior to being employed with the Haverhill Police
Department he was a member of the Massachusetts National Guard from which he has been honorably discharged. Officer Pagliuca has no prior discipline. In fact, in his short tenure with the Haverhill Police Department he has received a commendation for the performance of his duties as a police officer. (Testimony of Pagliuca; Exhibits 16 and 17). 2. Williams Leeman is a Lieutenant with the Haverhill Police Department. He has no prior discipline. In his tenure with the Haverhill Police Department he has received a commendation for the performance of his duties as a police officer. (Testimony of Leeman; Exhibit 17). THE NOYES INCIDENT 3. The following was unclear on the night of the incident, but it is information which we now know occurred on the evening of March 30, 2012. At approximately 10:30pm, a 2005 white Cadillac Escalade registered to Charles Noyes was travelling through West Newbury, Massachusetts. Charles Noyes was driving that vehicle. He was traveling on Main Street around the area of Baileys Lane when his cell phone, located on the front passenger seat, began to ring. As he reached across to grab his phone he lost control of the vehicle and it struck a telephone pole in West Newbury on Main Street after Training Field Road but before Baileys Lane. The vehicle caused the pole to split and hang into the roadway. The vehicle continued on to strike a traffic signal on the side of the roadway a short distance after the location of the telephone pole. The vehicle continued travelling on Main Street in the direction of Bridge Street and took a right turn onto Bridge Street in West Newbury. The vehicle then continued traveling on Bridge Street, over the Rocks River Bridge – which is located in West Newbury, Merrimac, and
Haverhill – until finally coming to a stop on the shoulder of East Main Street in Haverhill. (Testimony of Noyes; Testimony of Cena; Exhibits 6 & 23). 4. Sergeant Daniel A. Cena (“Cena”) was the Night Shift Supervisor for the West Newbury Police Department1 on the night of the incident. (Testimony of Cena). 5. He was in a single manned cruiser near the Town of Groveland line. He was dispatched to what was described as motor vehicle accident in the westbound travel lane of Route 113 at the intersection of Baileys Lane near the Training Field in West Newbury. (Testimony of Cena). 6. Cena arrived at the scene of the motor vehicle accident and did not see any vehicle in the area. He observed that a telephone pole was snapped and hanging over the roadway. There was also a cast iron traffic signal that had been snapped from its base approximately fifteen feet from the snapped telephone pole. (Testimony of Cena). 7. Officer Royster Johnson, also from West Newbury, arrived at the location of the accident. (Testimony of Cena). 8. Cena exited his cruiser and spoke to the residents of the area. A one, Ms. Dunlap2 reported that someone had driven by and told her that a smashed up vehicle was traveling in the direction of the Rock River Bridge. (Testimony of Cena). 9. Shortly thereafter, the West Newbury Fire Department then arrived on scene and Cena proceeded to attempt to locate the vehicle involved in the accident. (Testimony of Cena). 10. When Cena returned to his cruiser he noticed a fluid trail starting at the scene of the accident which he began to follow. The fluid trail led Cena to Bridge Street in West
West Newbury Police Department is not a Civil Service Town. Ms. Dunlap was not interviewed by Haverhill in their investigation into this incident, nor was she called as a witness before this Commission.
Newbury, two streets up from the scene. The fluid trail continued to one mile down the road to the Rocks River Bridge. (Testimony of Cena). 11. At the bridge there was a pooling of automotive fluid which led Cena to conclude that the vehicle had stopped at the stop sign before the bridge. Cena then requested that West Newbury dispatch notify Merrimac and Haverhill and he proceeded over the bridge. (Testimony of Cena). 12. As soon as he got over the bridge, as he described in his testimony before this Commission, the vehicle that appeared to have been involved in the accident in West Newbury was “in eyeshot” pulled off to the right shoulder of the road – “as furthest to the right as it possibly could have.” The vehicle was a white Cadillac Escalade. There were no lights on. (Testimony of Cena). 13. Cena pulled his cruiser to the rear of the Cadillac and radioed West Newbury dispatch that he was at the location of the vehicle. (Testimony of Cena). 14. Officer Adam White of the Merrimac Police Department (“White”) was dispatched to Rocks River Bridge area in Merrimac. He came to the end of River Road in Merrimac, which is in eye-shot of the end of the Rocks River Bridge, and as he was approaching the bridge he noticed Cena‟s police vehicle exiting the bridge and traveling towards the Cadillac. White stated that he followed Cena to the location of the Cadillac and the two of them parked in tandem behind the vehicle in the order of their arrival. White radioed Merrimac dispatch to advise them that he was on location and then exited his vehicle to speak with Cena. (Testimony of White). 15. It was at this point that Cena‟s testimony began to diverge from other accounts on scene. I did not find Cena to be a credible witness. Cena stated that the first thing that occurred
when he arrived on scene was that he approached the driver side door. He stated he knocked on the door which was opened by the operator. He then spoke to the person in the driver‟s seat. Cena testified that the person initially stated that he was fine. Cena stated that he then asked the operator if he was ok because he was involved in a serious accident in West Newbury, Cena says that the operator did not acknowledge him. Cena testified that he asked the operator if he was the registered owner of the vehicle and the operator answered affirmatively. Cena then asked for his license, which he turned over to Cena. In handing his license to Cena, the operator flashed his State Police badge. Cena stated that after taking the operator‟s license, Cena walked back to his cruiser, passed by White and told him that he believed the operator was intoxicated. Cena then used his cruiser radio to call dispatch to “log it.” (Testimony of Cena). 16. White recalls the initial interaction between Cena and the operator – who we now know as Charles Noyes – slightly differently than Cena in a few material respects. White recalls that after he and Cena arrived on scene they had a brief conversation before Cena proceeded to the driver‟s side door in which Cena stated “this must have been the vehicle involved in the accident in West Newbury.” White stayed to the rear of the vehicle at the driver side bumper during Cena‟s interaction with the operator. White recalls that when Cena approached the driver‟s side door he had a conversation with the operator through the window of the vehicle, not the door. White recalls that Cena then gave the operator a description of the accident and damage in West Newbury and asked him why he did not stop. White heard the operator say that he was not involved in any accident. White then heard Cena ask the operator to do a field sobriety test (“FST”) which the operator refused stating that he was not doing anything. It was at this time that Cena instructed the
operator to exit the vehicle. The operator opened the door, exited the vehicle and handed his license to Cena. Cena noticed the badge in his wallet and asked him if he was still on the job to which the operator told Cena that he was retired State Police. (Testimony of White). 17. In his testimony before this Commission, Cena initially denied that he engaged in any police actions during the stop, stating that he did not have authority in Haverhill. In fact, he stated that if this were an OUI stop in his town that he would typically ask the person to exit the vehicle to perform a FST. He specifically testified that he did not do that here because he had no authority to act as a police officer. I find this portion of Cena‟s testimony lacks credibility. (Testimony of Cena). 18. Cena was very clearly under the assumption that the operator of the vehicle had engaged in the crime of operating under the influence of alcohol (“OUI”). In order for a police officer to have probable cause to arrest an individual for OUI they must have probable cause to establish that the individual is (1) operating a vehicle (2) under the influence of alcohol (3) on a public roadway. (Testimony of Cena). 19. At this point, Cena, and perhaps White, had established that Charles Noyes (“Noyes”) was the operator of the vehicle. Cena testified that he had probable cause for operation on a public way based on the observations of the damage at the accident scene in West Newbury, his observations of the fluid trail, his observations of Noyes in the driver‟s seat of the vehicle when he arrived, and the license check that he ran with West Newbury dispatch. Cena testified that the only element that he had remaining was intoxication, which he assumed he had because he detected an odor of alcohol, slurred speech and further stated that “[Noyes] wasn‟t listening to [his] instructions.” However, as discussed
above, Cena claims that he did not make the arrest because he did not do a FST and did not have authorization to act as a police officer. (Testimony of Cena). 20. At this point in the stop, Cena directed Noyes to the rear of the vehicle and had him sit on the rear bumper. Cena continued questioning him. Cena asked if he had any weapons and Noyes answered affirmatively. Cena then entered the vehicle and seized Noyes‟ firearm. Cena was asked a second time whether he was acting as a police officer or a private citizen, he changed his answer and stated “I guess I was acting as a police officer.” (Testimony of White; Testimony of Cena). 21. In fairness to Cena‟s initial observations of intoxication, White also observed that Noyes was a little unsteady on his feet and had bloodshot eyes. However, White spoke to Noyes and did not observe slurred speech. White further stated that he did not smell any alcohol on Noyes. (Testimony of White). 22. Both Cena and White testified before this Commission that their observations are also consistent with potential injuries from a motor vehicle accident. (Testimony of Cena; Testimony of White). 23. At that point in the stop, a wrecker truck from Coady‟s Towing arrived on scene. White indicated that the arrival of the wrecker caused some confusion about who called the wrecker as neither White nor Cena had called for the truck. (Testimony of White). 24. Shortly thereafter, a fire truck from the Haverhill Fire Department and an ambulance from Trinity EMS arrived on scene with their lights activated. (Testimony of White). 25. Lee Mimms is a Lieutenant for the Haverhill Fire Department. He testified before this Commission and I found his testimony to be credible. He was on the Haverhill Fire truck that responded to the scene of the incident. He recalls responding to the scene with lights
and sirens. He remembers seeing the vehicle with heavy front end damage and walking around the vehicle looking for leaking fluids. He recalls seeing police officers on scene and seeing Noyes standing behind the vehicle. (Testimony of Mimms). 26. It appears that the fire truck responded to the scene and performed their sweep of the vehicle prior to the ambulance‟s arrival. Mimms remembers asking Noyes if he was ok and Noyes responding in the affirmative. Mimms did not smell any alcohol on Noyes and describes that he got within two to three feet of Noyes. (Testimony of Mimms). 27. The two medics on scene from Trinity EMS were Erin Fortin and Carl Rizzo. I found their testimony to be credible. Rizzo, the driver of the ambulance, recalls arriving on scene to an SUV with front end damage. He recalls seeing a West Newbury Officer, a Merrimac Officer and the engine company. Fortin explained that when she arrived on scene she exited the ambulance proceeded to Noyes who was at the back of the vehicle. (Testimony of Fortin; Testimony of Rizzo). 28. Fortin then explained that she recalls observing Noyes in a relaxed melancholy state. She stated that he was relaxed and had initially refused care. (Testimony of Fortin). 29. It appears that Pagliuca arrived at some point after Trinity EMS but before the medics had completed their initial evaluation.3 (Testimony of Pagliuca; Testimony of Rizzo). 30. Pagliuca testified before this Commission. I find his testimony to be credible. Pagliuca recalls working on the night of the incident. He recalls getting a call from dispatch regarding a car accident in the area of River Road. Dispatch further reported that somebody was standing outside the car on a cell phone. (Testimony of Pagliuca).
Cena is the only witness to this proceeding who has Pagliuca arriving before Trinity EMS arrived. Cena claims that after Pagliuca arrived on scene and Trinity arrived on scene, he told them that he believed Noyes was intoxicated and then proceeded up the hill to direct traffic for the remainder of his time on scene. (Testimony of Cena). I find this porti on of Cena‟s testimony lacks credibility. White testified that he performed traffic control for the majority of his time on scene and that Cena never did traffic control further stating that if he did it was for a very short period. (Testimony of White).
31. Officer Pagliuca proceeded to the area of River Road4 from Haverhill traveling west to east. His first observation was emergency lights flashing. He recalls pulling up to the scene and speaking to Cena. He recalls telling Cena that dispatch told him that the vehicle left the scene to which Cena responded in the negative. Pagliuca testified that at this early point he was operating under the assumption that the operator was drunk given the description from dispatch and his initial conversation with Cena. He further testified that he asked Cena if the guy was drunk and Cena responded “legless.” Cena then told Pagliuca that the guy is a retired trooper. He hit a couple of poles in West Newbury. Cena then handed Pagliuca Noyes‟ license and told him he seized Noyes‟ firearm and was holding it in his cruiser. Pagliuca was then instructed by Cena to park his cruiser and told by Cena that he would update him. (Testimony of Pagliuca). 32. Pagliuca proceeded to park his cruiser. Given the multi-jurisdictional issues and the fact that Cena appeared to be in control of the scene, Pagliuca called dispatch over the radio and requested his street supervisor.5 Dispatch sent Sergeant Harry Miller to the scene.6 (Testimony of Pagliuca).
East Broadway in Haverhill traveling west to east becomes East Main Street in Haverhill. Traveling west to east on East Main Street leads to the Rocks River Bridge. Once in West Newbury the roadway becomes Bridge Street. River Road is predominantly located in Merrimac and runs parallel to the Merrimack River until coming to an end just over the Haverhill border just before the Rocks River Bridge.
Multiple policies and procedures of the Haverhill Police Department have been admitted in evidence. Specifically, the Haverhill Police Department has a mutual aid policy which governs officer authority when an officer is outside the jurisdiction of their city or town. Haverhill does not have a mutual aid agreement with Merrimac or West Newbury. However, the mutual aid policy states, in part, the following: ASSISTANCE FROM MSP and LOCAL DEPARTMENTS. It shall be the responsibility of the Shift Commander (OIC) to make the initial decision regarding the need for outside assistance form the Mass. State Police and/or other local departments during some emergency situations. However, the Operations Commander should be contacted for the purpose of advising that the action was taken and to be briefed on the circumstances. Examples of situations that might require this action includes, but are not limited to: disbursement of large crowds or gatherings; collision scenes; searches for a suspect or suspects following a crime; and searches for missing or wanted persons. Shift Commanders shall assume overall command of those situations in which they have obtained outside assistance. (Emphasis added). The Haverhill Police Department Policy on Collection and Preservation of Evidence has also been admitted. The section of the Collection and Preservation of Evidence policy entitled “Initial Response to a Crime/Incident Scene” states the following:
33. Pagliuca got out of his cruiser and proceeded to the area where the medics were initially evaluating Noyes at the back of the Cadillac. (Testimony of Pagliuca). 34. Fortin testified that she asked Noyes if he had anything to drink and he stated that he had two drinks that night. Pagliuca testified that he along with Cena and White heard this conversation. Fortin proceeded to ask Noyes for consent to perform vitals and other care questions which he refused. Fortin was then going to have him sign refusal of care forms, but Pagliuca asked her to standby and wait for his supervisor to arrive so that he could first evaluate the scene. (Testimony of Fortin; Testimony of Pagliuca). 35. Sergeant Harry Miller of the Haverhill Police Department has been working with the Haverhill Police Officer since 1997. He was made a full time police officer in 2002 and promoted to Sergeant in 2010. He was demoted to police officer as a result of a settlement agreement that he reached with the City in the face of a recommendation for termination for Miller‟s involvement in the instant matter and for his involvement in a previous incident in which it is alleged that he changed his police report for leaving the scene to a simple accident report for a multi-car accident involving a State Trooper by the
The first unit to arrive will be responsible for identifying, securing, and protecting the crime/incident scene as well as conducting the preliminary investigation in accordance with the department policy on preliminary investigations. Any contamination of the scene can greatly reduce the effectiveness of the department in successfully processing the scene. a. The officer(s) shall ensure that the scene remains undisturbed by refusing access to unnecessary personnel; b. No one should be allowed to pick up or place anything in the crime/incident scene area; and c. Items of evidence shall not be handled unless health or safety factors require the immediate security or removal of an item. Upon the arrival of a supervisor, (s)he will assume command of the scene. (S)he will ensure that sufficient personnel are available to secure and protect the scene, deny access to unauthorized persons, and preserve evidence. The supervisor will evaluate the need for special units for search or investigative purposes, and notify the officer-in-charge of the station.
Sergeant Harry Miller‟s disciplinary history has come into light during the course of the investigation of this inci dent. On the night of the incident, both Leeman and Pagliuca were unaware of Miller‟s previous issues in similar situations. In fact, nei ther Leeman nor Pagliuca learned of Miller‟s history until the investigation of this incident had been concluded. Th e details of Miller‟s disciplinary history are discussed more fully in the body of the findings.
name of Paul Regan (“Regan incident”). Chief Alan DeNaro testified that the City of Haverhill did not learn of the Regan incident, which occurred in 2005, until the investigation into the instant matter. He testified that they learned of the Regan incident due to a post on the discussion thread to an article that had been written about the Noyes incident. Miller received a ten-day suspension and demotion from Sergeant to Patrolman as a result of a settlement agreement reached between he and the City of Haverhill. The Chief had requested that the City terminate Sergeant Miller. (Testimony of Miller; Testimony of DeNaro). 36. When Miller arrived on scene he was approached by Officer Pagliuca. Miller asked Pagliuca what he had on scene and Pagliuca told him that when he arrived on scene he observed a West Newbury Police Officer and a Merrimac Police Officer conducting an investigation with Noyes, a retired State Trooper, and the smashed up vehicle on the side of the road. (Testimony of Miller). 37. Pagliuca testified that he was under the impression that Haverhill was only on scene to assist West Newbury. Although the two did not discuss their understanding specifically, Miller testified that he believed that Pagliuca was under the impression that it was Cena‟s crime scene and investigation. Miller testified that he was under the same impression as Pagliuca until later on in the investigation. (Testimony of Miller) 38. Miller then asked Pagliuca: “is he intoxicated?” to which Pagliuca responded that Cena said he was in an accident in West Newbury and that he had followed him into Haverhill. Pagliuca said that Cena told him that when he arrived on scene Noyes came out of the vehicle and “tinned” him – stating he was a retired state trooper. Pagliuca further stated
that Cena told him that he could smell “booze.” Pagliuca stated that Cena and White had propped him up at the back of the car and began an investigation. (Testimony of Miller). 39. Miller then said to Pagliuca: “what do you think?” to which Pagliuca responded that Noyes cannot stand up, his eyes are glassy, and I think he is intoxicated. Miller then went to speak to Cena. (Testimony of Miller). 40. Cena told Miller that he responded to the scene of a motor vehicle accident in his town. Cena said that he took out a telephone pole and light pole and continued driving. Cena said that he followed the fluid trail to the bridge, noticed the Cadillac and came into Haverhill. Cena told Miller that he went to the driver‟s side door at which time Noyes exited the vehicle and fell into his arms. Noyes then “tinned” Cena, at which point Cena propped Noyes up at the rear of the vehicle. Cena did not tell Miller that he attempted to conduct a FST. (Testimony of Miller). 41. Miller and Pagliuca then went to the rear of the Cadillac. Miller observed Noyes leaning against the vehicle. He further observed that there were two medics there with Noyes. Miller then asked Noyes if he had been drinking to which he responded “no.” Miller then told Noyes that Cena told him that Noyes was in an accident in West Newbury to which Noyes responded “what accident?” (Tesitmony of Miller). 42. Miller then went back to Cena and said to him “so are you charging him with leaving the scene and OUI.” Cena responded “No, I am charging him with leaving the scene but not OUI.” Miller then said “why aren‟t you charging him with OUI if you are charging with leaving the scene” to which Cena responded “my Chief and the DA will get mad at me.” (Testimony of Miller).
43. It was at this point that Miller formed the belief that he, not Cena, was in command at the scene. (Testimony of Miller). 44. Miller then called Lieutenant William Leeman on his cell phone and told him what was happening on scene. Leeman was the most senior officer on duty that night, working in the HPD station. Miller informed Leeman of the fact that Cena was going to charge Noyes with leaving the scene but not OUI. Leeman told Miller to ask Cena to call his officer-in-charge to confirm that course of action, which Miller did. Cena responded, “I am the OIC.” (Testimony of Miller; Testimony of Leeman). 45. Miller testified that he called his Lieutenant because of the discipline that he received as a result of a previous incident involving Haverhill Police Detective Glenn Fogarty (“Fogarty incident”), which is discussed in greater detail below. Miller stated that when he received discipline for the Fogarty incident the Chief said to him specifically that if he finds himself in that situation again that he should call his Lieutenant. (Testimony of Miller). 46. While Leeman did know that Miller had been disciplined, he did not know the facts behind the discipline, and no one in the Haverhill Police Department of any rank had informed him why Miller had been disciplined. (Testimony of Leeman). 47. While Miller was on the phone with Leeman, Pagliuca recalls waiting with Noyes by the rear of the vehicle and having a conversation with him about random unrelated incidents that have occurred in Haverhill. Pagliuca did not observe any slurred speech, but Noyes did appear to be rambling in the sense that he continued to talk about random past events that took place in Haverhill when Noyes was still a trooper. (Testimony of Pagliuca).
48. Miller then recalls Noyes started speaking about the fact that they all work the same job, stating that if this was the good old days they would just let him go. Miller said to Noyes “If I get the green light to charge you, you are getting charged.” (Testimony of Miller). 49. A few moments went by and Miller then called Leeman back. Leeman, who had been researching caselaw to find any case that would justify charging Noyes with operating under given the facts presented to him after the first phone call with Miller, directed questions towards Miller regarding their observations of Noyes.7 One of the questions was whether they could smell alcohol to which Pagliuca and Miller responded that they could not smell alcohol. Leeman then asked Miller if the windshield was spider-webbed, to which Miller responded in the affirmative. Leeman then asked if he could have a head injury to which Miller responded that he did not have any visible injuries. Leeman then asked Miller if anyone had asked Noyes if he was driving the vehicle or if there were any keys. Miller started to ask the officers on scene if they asked Noyes if he was driving or if they had the keys. Pagliuca responded in the negative. Cena also responded in the negative. (Testimony of Miller) 50. Miller then got out of his cruiser, which is where Miller was while he was on the phone with Leeman, and he approached Noyes and asked him if he was driving. Pagliuca recalls that Noyes responded by saying “where are you going with this?” Noyes then responded by saying that he was not driving. Miller asked him who was driving and Noyes refused to answer. (Testimony of Pagliuca)..
At the Full Hearing of the instant matter Chief DeNaro claimed that Leeman should have either used a different Sergeant for the Noyes incident or reported to the scene himself. With regard to Leeman reporting to the scene, however, the Chief issued an order on July 6, 2010 ordering the Shift Commander to remain inside the station unless responding to the scene of a significant incident. The July order rescinded a 2002 order which states that the Chief supports the Commanders leaving the station particularly for serious events “such as fatal accidents, major fires, and other events that would merit the attention of the commander.” (Exhibit 19 & 20). With regard to other available Sergeants, it would appear, as a matter of coincidence that the other sergeant on duty that evening was in the process of responding to a multi-vehicle motor vehicle accident involving a person who may have been operating under the influence. (Testimony of Leeman).
51. Miller then directed Pagliuca to check the Cadillac for keys. Miller recalls Pagliuca walking around the vehicle and opening the passenger door looking for the keys without success. (Testimony of Miller). 52. Pagliuca recalls doing a search of the vehicle by walking around the perimeter of the vehicle and shining his flashlight into the vehicle cabin. He does not recall finding or seeing a set of keys. (Testimony of Pagliuca). 53. Leeman then told Miller that based on what Miller had told him and after Leeman‟s own research, he did not believe that Haverhill had enough probable cause for operation. (Testimony of Miller). 54. Throughout the multiple telephone conversations between Miller, on scene, and Leeman, back at the station, Leeman referenced his law books to attempt to assist with the situation on scene. Based on the information that Miller was reporting to him, he was unable to conclude that the Haverhill officers had probable cause to arrest for the crime of OUI on the facts that they knew on scene. (Testimony of Leeman). 55. Miller then engaged in a discussion with Cena about who was going to charge Noyes and with what. Pagliuca was not a part of this conversation. Miller then relayed that information to Pagliuca. It was at that point that Pagliuca realized that Noyes was not going to be arrested. (Testimony of Pagliuca). 56. Shortly after that exchange Miller approached Noyes and suggested that he go with the medics which Noyes agreed to do. (Testimony of Pagliuca). 57. Pagliuca was then instructed by Miller to accompany Noyes to the ambulance which he did. Pagliuca describes the accompaniment as placing his right hand on Noyes‟ left arm
and just walking in the direction of the ambulance. Rizzo and Fortin have the same recollection. (Testimony of Pagliuca; Testimony of Rizzo; Testimony of Fortin). 58. It was at this point that Cena began yelling at Noyes. Cena stated that Noyes was giving them the “run-around” claiming that they do not have operation and stating that there are no keys. Cena stated that he said to Noyes “are you really going to play this f*****g game” and “you are lucky you made it to Haverhill because if you didn‟t you‟d be going to jail right now.” Cena also stated that he was almost killed by a drunk driver in a previous incident and that his failure to take ownership was “ridiculous.” (Testimony of Cena). 59. Miller then approached Cena and told him that if he was going to charge Noyes with OUI that Miller and Pagliuca would be glad to testify. Miller further stated that he is going to the hospital and that his blood could be subpoenaed. Cena said “no, that‟s ok,” got in his cruiser, handed Noyes‟ firearm to Miller, and left. (Testimony of Miller). 60. Before Pagliuca left he recalls receiving Noyes‟ firearm from Miller to be logged. As he was walking back to his cruiser he recalls the tow truck driver asking where the keys were, to which Pagliuca responded that he did not know. (Testimony of Pagliuca). 61. Pagliuca then returned to the station. He went immediately to Lieutenant Leeman‟s office and asked him whether he should write a report and what type of report it should be. Pagliuca explained that there are criminal charge reports, miscellaneous reports, etc. For example, if the report was an OUI report it would include elements of the crime whereas a miscellaneous report only contains observations. Pagliuca testified that he was confused as to whether or not he should write a report because no arrest was made. (Testimony of Pagliuca).
62. Lieutenant Leeman instructed Pagliuca to write a miscellaneous report, a standard report to write when assisting other jurisdictions. Pagliuca then inquired as to what information should be included in the report given it was a miscellaneous report. Pagliuca testified that it was not customary for supporting officers to write a report when assisting other jurisdictions. Consistent with this testimony, White testified that he did not write a report at all. White testified that he just logged his activity in the CAD system as an assist on the call. (Testimony of Pagliuca; Testimony of White). 63. Pagliuca then went to the report room and began writing the report. As he was writing the report, Sergeant Miller came into the report room and spoke to Pagliuca but did not provide any input. Pagliuca told Miller that Noyes was rambling on scene about having a few drinks with dinner and coming through Newburyport to pick up eggs from a friend‟s house. Miller claims that this prompted him to ask Leeman if they should put in an application for complaint for OUI. Leeman denies that this conversation ever occurred. (Testimony of Miller; Testimony of Leeman). 64. Lieutenant Leeman also entered the room to review the report. From the time that he started writing the report to the time that he completed the report, there was no input from Leeman or Miller as to the content of the report. Once the report was submitted, Pagliuca did not make any changes to the report. Pagliuca was never ordered to supplement his report nor did a supervisor identify or address with him any issues in his report. (Testimony of Pagliuca). 65. Cena also wrote a report on the incident. His report was written five days after the incident. Further, there were a number of seemingly relevant pieces of information that Cena omitted from his report. He indicated through testimony that he believed that
Noyes‟ speech was slurred, information which is not in his report. He indicated through testimony that Noyes was not following instructions, information which is not in his report. He indicated through testimony that Noyes was stumbling after he exited the vehicle, information which is not in his report. He indicated through testimony that Noyes flashed his badge, information which is not in his report. The report does not indicate that Cena seized a firearm from Noyes‟ vehicle. The word “legless” is not in Cena‟s report. Cena was not disciplined for his response to this incident. (Testimony of Cena). DEPUTY CHIEF DONALD THOMPSON’S INVESTIGATION 66. Chief Alan DeNaro has been the Police Chief of the Haverhill Police Department8 for approximately eleven years. DeNaro testified that he learned of the Noyes incident the morning after it had occurred and recalls specifically because he reported to the office after responding to a multi-alarm fire in his capacity as Fire Chief. DeNaro testified that he received calls from citizens over that weekend with complaints about the way the Noyes incident was handled. The alleged calls were not documented in writing. Rule 125 of the Code of Ethics for the Haverhill Police Department requires that any formal complaint against any member of the Department shall be “courteously and promptly record[ed], in writing.” Rule 82.2.2 “Reporting Requirements” further specifically requires that all citizen complaints must be reported in writing. (Testimony of DeNaro; Exhibit 1; Exhibit 14). 67. Chief DeNaro claims to have a specific memory of reading Officer Pagliuca‟s report on April 2, 2012, the Monday following the incident. This information is puzzling because
Chief DeNaro is the Public Safety Commissioner for the City of Haverhill which includes the roles of Police Chief and Fire Chief.
the Chief also stated that he read Cena‟s report and Pagliuca‟s report at about the same time. Cena‟s report was not submitted until April 4, 2012. (Testimony of DeNaro; Exhibit 6). 68. DeNaro testified that he ordered his Deputy Chief to conduct an investigation immediately. He testified that he ordered the investigation because “some of the collateral damage for our lack of doing our best service on this case was that the public had lost a serious amount of confidence in this agency and our ability to police everyone fairly and equitably, and that‟s something that‟s going to take us a long time to overcome because there are many people, and rightfully so, who feel that if it had been them in the same situation, they would have been arrested.” DeNaro denies that he specifically follows or responds to media coverage of the Police Department. (Testimony of DeNaro). 69. Donald E. Thompson is Deputy Chief of the Haverhill Police Department. Thompson stated that the Chief assigned the investigation to Thompson on the Monday following the incident. (Testimony of Thompson). 70. Thompson was asked about the alleged complaints that prompted the investigation and he stated that the complaints that DeNaro received were not documented. He elaborated that that “type” of complaint does not need to be documented pursuant to the Rules and Regulations of the Police Department because he is receiving complaints from City Hall. Thompson stated that if DeNaro gets a call from a city counselor that the complaint would not be documented. Rule 125 does not have an exception to the in-writing requirement. Further, DeNaro stated he received calls from citizens, not City Hall or a city counselor. (Testimony of Thompson; Testimony of DeNaro; Exhibit 1).
71. As part of Thompson‟s investigation, he interviewed Cena, Miller, Pagliuca, Leeman, Fortin, a Mr. Lesiczka (911 caller), White, and Rizzo. Thompson testified before this Commission that he spoke to Mimms in passing but decided that he did not have any relevant information and did not interview him. This fact is not noted in Thompson‟s report. In this respect I find his testimony lacks credibility. Thompson specifically notes in his report that he had conversations with the Essex County District Attorney‟s Office and the Worcester County District Attorney‟s Office.9 His alleged discussion with Mimms is not included in this, or any other section of his report. (Exhibit 9). 72. As noted above, DeNaro denies that he initiated an investigation into the matter in response to the manner in which the media was covering the Noyes incident. On April 5, 2012, the Newburyport News wrote an article entitled “Retired state trooper charged with reckless driving.” The article was written one day after Cena‟s report had been submitted. It specifically states “[w]hen contacted last night, a Haverhill police official said Noyes was not arrested following the crash. He added there is no mention of Noyes in the police log for that night.” (Testimony of DeNaro; Exhibit 21). 73. On April 9, 2012 an editorial was published in the Eagle Tribune in which it is stated “it‟s crystal clear that the incident and the way it was handled by Haverhill police merit much closer scrutiny.” The editorial further states “West Newbury, to their credit, have provided the bulk of the information on how this incident was handled. Now it‟s up to Haverhill police to explain how the investigation was handled when they took it over and whether any special treatment was given.” (Exhibit 21).
The District Attorney‟s office noted that if anyone was to arrest or charge Noyes with operating under the influence it should have been West Newbury. 21
74. On April 10, 2012 the Eagle Tribune published an article entitled “Haverhill police probe retired trooper‟s crash.” The article states, in part, “Haverhill Deputy Chief Donald Thompson said his department is reviewing the March 30 incident and declined to discuss details or provide a police report until the probe is concluded. Thompson said he could not speculate why driver Charles Noyes, 62, of Haverhill was not arrested at the scene. Thompson said the probe would likely take a few days to complete and the police report would likely be made available then.” (Exhibit 21). 75. The first interview performed by Thompson in the Haverhill Police Department‟s investigation of this incident was April 10, 2012. West Newbury Sergeant Cena and Trinity EMS Medic Erin Fortin were interviewed on April 10th. Also of note is the fax time stamp on the Trinity EMS Report included as an attachment to Thompson‟s investigation report. The note is time-stamped 2:03pm on April 10, 2012. Thompson‟s interview of Fortin occurred on April 10, 2012 at 2:17pm. The above is the first piece of evidence indicating when the investigation in Haverhill may have begun. Neither Thompson nor the City provided any document supporting their claim that the investigation began prior to April 10th. (Testimony of Thompson; Exhibit 12; Exhibit 13). 76. In addition to the fact that the City has failed to provide any evidence showing they commenced their investigation prior to April 10, 2012, Pagliuca continued to work multiple shifts since the date of the incident. Further, he was not placed on paid administrative leave until April 11, 2012, which would suggest that the matter was not under investigation until April 10th or April 11th. (Exhibit 11; Testimony of Pagliuca).
77. Lieutenant Leeman was subsequently interviewed on April 11th and May 1st. Officer Pagliuca was interviewed on April 20th and April 30th. Sergeant Miller was interviewed on April 23rd and May 1st. Merrimac Officer White and Trinity EMS Medic Carl Rizzo were interviewed on May 4th. It appears that no investigative activity occurred in the weeks following Rizzo‟s May 4th interview. (Testimony of DeNaro; Exhibits 9 & 13). 78. On May 20, 2012, the Eagle Tribune published an editorial entitled “Ex-cop‟s accident case leaves a stain on the system.” The editorial cited the fact that Noyes‟ criminal case was continued without a finding for six months during which time Noyes was on unsupervised probation. The editorial further states “[t]here‟s one last chance for answers about what happened the night of March 30.” The editorial goes on to state that the Haverhill police are conducting an investigation and promise answers. The editorial closes by stating “[b]ut the stain on the system cannot be scrubbed away until the many questions surrounding this case are answered.” (Exhibit 21). 79. On May 23, 2012 a report was published by the Eagle Tribune in which Noyes‟ lawyer is quoted as commenting on Pagliuca‟s police report – which had not been publically released by Haverhill – stating that the Haverhill patrolman did not detect an odor of alcohol or observe that Noyes was unsteady on his feet and neither did the patrolman‟s street supervisor. Noyes‟ lawyer is further quoted as stating that the doctors at the hospital found that he was not under the influence of alcohol. (Exhibit 21). 80. That same day, Thompson purportedly sent Officer Ed Watson to “check” with Coady‟s Towing about the location of the keys. Thompson did not interview or speak with anyone from Coady‟s Towing about the incident or the location of the keys despite the fact that the wrecker was the third responder to the scene. According to Thompson‟s
report, however, Watson allegedly learned that the keys to Noyes‟ vehicle were on the seat. There is no indication of whether the keys were on the seat the night of the incident, whether the person who Watson spoke to went to check the vehicle at the time of the phone call, which seat the keys were located on, etc. (Exhibit 9). 81. Pagliuca was disciplined with a five day suspension from the Chief on May 29, 2012. On June 1, 2012 the Haverhill Police Department notified the Eagle Tribune of the Chief‟s decision to suspend Pagliuca, Miller, and Leeman.10 The mayor further issued a written statement noting “[t]he internal investigation by the police alleges that proper and thorough investigation was not done in this matter.” (Exhibit 21). 82. In Thompson‟s testimony before this Commission he testified that, during his interview with Pagliuca, Pagliuca told him that he believed that Noyes was either going to be arrested or summonsed. However, Pagliuca expressed to Thompson that he had concerns regarding the operation element and the jurisdictional issues and that the keys were not a big issue at the scene. He further stated that he was concerned as to why West Newbury did not charge Noyes with OUI. Thompson does not mention any of the above in his report. (Testimony of Thompson; Exhibit 9). 83. Thompson, in his testimony and in his report, did not acknowledge any of the jurisdictional issues on scene. In his testimony before this Commission, however, he acknowledged that when Pagliuca arrived the Cadillac was just over the Haverhill line, that Sergeant Cena from West Newbury appeared to have stopped the vehicle, that Cena
Personnel records are protected from public disclosure by M.G.L. c. 4, § 7(26)(c). In fact, in an earlier matter between Leeman and the City, the City took an even stricter position that not only were personnel records protected from disclosure, but so to were internal affairs investigative materials. Leeman was forced to bring suit to compel the production of certain materials. In Leeman v. Cote, the court ordered the City to release internal affairs investigative materials but specifically ordered redaction of officer names, addresses, and disciplinary reports. 21 Mass.L.Rptr. 411 (Suffolk County, August 30, 2006). Despite this very clear ruling, the Chief and the City immediately released not only the investigative materials to the City, but the officer names, addresses, and disciplinary reports.
had taken Noyes‟ license and seized his firearm, and that Cena was in the process of questioning Noyes. Thompson admitted that Pagliuca calling the Sergeant was the right thing to do. His admission about the correctness of calling the Sergeant is not in his report. (Testimony of Thompson; Exhibit 9). 84. Thompson‟s conclusions in his report with respect to Pagliuca do not coincide with his testimony before this Commission. Thompson testified that once Sergeant Miller was on scene, Miller was in command of the scene with respect to Haverhill. However, Thompson attributes the failure to conduct a FST and failure to investigate to Miller and Pagliuca equally. Thompson believes that Haverhill had probable cause to arrest, but his report evaluates probable cause to arrest for OUI entirely upon the facts known to Cena on scene which were not fully reported until April 4, 2012. (Testimony of Thompson). 85. To that end, DeNaro testified that the three elements to OUI are (1) operating, (2) under the influence of alcohol (3) on a public roadway. DeNaro admits that no Haverhill officer observed the vehicle in operation. He admits that no Haverhill officer observed Noyes operate the vehicle. He admits that no Haverhill officer observed the vehicle on a public roadway. (Testimony of DeNaro). 86. Both Thompson and DeNaro take issue with regard to what is and is not contained in Pagliuca‟s report. However, both Thompson and DeNaro appear to assume, incorrectly, that Pagliuca‟s report is also Miller and Leeman‟s report. Thompson‟s report cites the field reporting policy for the Haverhill Police Department where it states that “all reports will be complete and will explain exactly who did what, when, where, how and why” and that “all relevant facts will be noted.” Thompson correctly recognizes that Pagliuca‟s report is classified as a miscellaneous report but fails to discuss the significance of such
classification. The field reporting policy very clearly differentiates between the type of reports that officers are expected to write. For example, if an officer has made an arrest, the arrest report is specific to the crime for which the person was arrested. In that event the facts relevant to the report will include the facts relevant to probable cause to arrest for the crime for which the person was arrested. This information is contained in Field Reporting Policy 82.2.1(a); 82.2.1(b); 82.2.1(c); and 82.2.1(d). An officer is only required to submit an arrest narrative when an arrest has been made. Thompson‟s report fails to mention this detail of the Field Reporting policy and treats Pagliuca‟s report as an arrest narrative rather than a miscellaneous report. It appears that DeNaro has made the same mistake. (Testimony of Thompson; Testimony of DeNaro; Exhibit 14). 87. The Field Reporting Policy further states that when a “specific report form is not capable of containing the complete report or if Police Officers are requested by a Supervisor to submit a report for whatever reason, they will use the To/From report format and close with the phrase „Respectfully Submitted:‟ followed by the Officer‟s rank and/or title, printed and signed name.” There is no further instruction or requirement as to the content of miscellaneous reports. The miscellaneous report is precisely the type of report that Leeman ordered Pagliuca to complete which Pagliuca submitted to Leeman upon its completion. Pagliuca was never informed of issues with his report or instructed to submit a supplemental report. (Testimony of Pagliuca; Testimony of Leeman; Exhibit 14). 88. Thompson‟s identified deficiencies with the report are not deficiencies attributable to Pagliuca. For example, Thompson notes in his investigative report that Pagliuca‟s report does not indicate that there was a discussion between Haverhill and West Newbury with
regard to charging Noyes with OUI. This was Miller‟s discussion. Miller did not write a report. (Testimony of Thompson; Exhibit 9). 89. Thompson further concludes that Pagliuca‟s statement that he could not smell alcohol is misleading because he did not get closer than three or four feet from Noyes. Thompson‟s conclusion is contradicted by the fact that Pagliuca escorted Noyes to the ambulance. In fact, Thompson‟s investigatory report fails to discuss that White did not smell alcohol, Rizzo did not smell alcohol, Fortin smelled a faint odor of alcohol initially when she was approximately eight inches away from Noyes‟s face but she could not smell alcohol when she was with Noyes in the back of the ambulance. It appears that Thompson‟s report contains only what is necessary to draw conclusions against Pagliuca and Leeman, rather than gather a full understanding of what had occurred on scene. (Testimony of Thompson; Exhibit 9). 90. Thompson‟s report also does not indicate, one way or another, whether he made any effort to interview Noyes. (Exhibit 9). 91. Charles Noyes testified at the full hearing of the instant matter. He testified that he is a retired state police trooper and that he worked for the state police for thirty two years. He is currently director of public safety at Wentworth Institute. (Testimony of Noyes). 92. Noyes testified that he was involved in an accident in March of 2012. He testified that prior to the accident he was at work at Wentworth Institute. He left work and went to dinner at the State Street restaurant in Newburyport. He had two drinks with dinner. (Testimony of Noyes). 93. Noyes testified that as he was driving home, his phone was on the passenger seat. He recalls reaching across to grab his phone and hitting the curb. He has no recollection of
what happened after that point. He stated that he believes he hit the windshield with his head because of the spider-webbed windshield and having blood on his head and hands. (Testimony of Noyes). 94. Noyes remembers telling the medics that he hit the windshield with his head. He remembers telling the medics that he cut his leg with a chain-saw and it was difficult to walk when he got out of the car. Noyes explained that he had cut his tendon three years or so prior to the incident which made it difficult to walk after having been seated for an extended period of time. (Testimony of Noyes). 95. Noyes remembers being in the ambulance but does not remember any of the details. He recalls being transported to Merrimac Valley Hospital and receiving fluids for dehydration for the flu, took x-rays, and gave him anti-nausea medication. (Testimony of Noyes). 96. Noyes testified that from the time that he reached down to get his cell phone to the time that he was in Merrimac Valley Hospital all that he can recall is blue lights, someone approaching him while he was sitting in the car, and being put in the ambulance. He does not remember having any conversation with anyone about keys, about reminiscing about calls in Haverhill while he was a state trooper, and he does not recall refusing medical treatment. Noyes further testified that he did not recognize Officer Pagliuca or Lieutenant Leeman. (Testimony of Noyes). 97. None of what was learned through Noyes‟ testimony before this Commission was included in Thompson‟s report because Thompson did not make any effort to interview Noyes despite the fact that Noyes‟ criminal matter was resolved prior to Thompson having completed his investigation. (Exhibit 9; Exhibit 21).
OTHER INCIDENTS OF DISCIPLINE 98. DeNaro testified regarding an incident involving an unidentified Haverhill officer which occurred on October 23, 2006. On that date, an unidentified Haverhill officer reported to a multi-car accident where one driver may have been operating under the influence, failed to properly investigate and failed to write any report on the incident. In fact, the officer just drove the potentially intoxicated person home. DeNaro testified that the officer was only cited for failure to properly investigate despite the fact that no report was likely submitted regarding the accident. Although he could not recall if a report had actually been submitted or not, he testified that it is a fair conclusion that even if a report was submitted, the report did not include all relevant facts or the officer would not have been cited for failure to properly investigate. The officer was cited for unsatisfactory performance but was only given a letter of reprimand for the alleged violation. To the best of his recollection, DeNaro does not recall any media coverage of that incident in 2006. (Testimony of DeNaro; Exhibit 22). 99. DeNaro testified that the fact that the officer was only on the job for a year distinguishes that case from this situation. DeNaro did not discuss, however, the fact that the officer had completed thorough training as a new hire on the subject of OUI along with the training the officer would have received in the field. I find DeNaro‟s testimony in this respect to be incredulous and self-serving. If I am to accept DeNaro‟s justification, it would appear to suggest that it is excusable for a younger officer to drive a potentially intoxicated driver home rather than investigate and report a potential OUI. (Testimony of DeNaro).
100. Chief DeNaro further testified to a separate and unrelated incident involving Miller and off duty Haverhill Police Detective Glenn Fogarty. He stated that in the Fogarty incident, Fogarty was off duty and trailering a boat through Haverhill that came loose and collided with parked vehicles. There was a question about whether Fogarty had been drinking. The two responding Haverhill patrolmen on scene had information to suggest that Fogarty had possibly been drinking, including an open container of alcohol. The two patrolmen did not radio for assistance but called Miller on his personal cell phone and requested his assistance. Miller did not have the officers do any FST or any further investigation. They did not do any investigation despite the fact that there was a bottle of beer on the side of the roadway next to the vehicle. The officers did no investigation nor did they write a report about the incident. Sergeant Miller was suspended for five (5) days. The officers involved in the incident were not disciplined. (Testimony of DeNaro). 101. Chief DeNaro claims that the Fogarty incident was “completely different” than the instant, Noyes incident. He claims that the fact that no officer said Fogarty was “legless” or that Fogarty could not stand. He claims that the incident was different because there was no police officer following a trail of breadcrumbs to the side of the road. I find DeNaro‟s explanations to be less than credible and, once again, self-serving. Contrary to the Noyes incident at issue in the instant matter, everything of relevance in the Fogarty incident happened in Haverhill. Unlike the potential jurisdictional issues involved in the Noyes incident, there were none in the Fogarty incident. DeNaro testified that he does not believe there was any news coverage of the Fogarty incident.11 (Testimony of DeNaro).
A January 2, 2013 article in the Eagle Tribune indicates that they did not become privy to the Fogarty incident until the investigation of the Noyes incident.
G.L. c. 31, § 43, provides: “If the commission by a preponderance of the evidence determines that there was just cause for an action taken against such person it shall affirm the action of the appointing authority, otherwise it shall reverse such action and the person concerned shall be returned to his position without loss of compensation or other rights; provided, however, if the employee by a preponderance of evidence, establishes that said action was based upon harmful error in the application of the appointing authority‟s procedure, an error of law, or upon any factor or conduct on the part of the employee not reasonably related to the fitness of the employee to perform in his position, said action shall not be sustained, and the person shall be returned to his position without loss of compensation or other rights. The commission may also modify any penalty imposed by the appointing authority.” An action is "justified" if it is "done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind; guided by common sense and by correct rules of law." Commissioners of Civil Service v. Mun. Ct. of Boston, 359 Mass. 211, 214, 268 N.E.2d 346 (1971); Cambridge v. Civil Service Comm‟n, 43 Mass.App.Ct. 300, 304, 682 N.E.2d 923, rev.den., 426 Mass. 1102, 687 N.E.2d 642 (1997); Selectmen of Wakefield v. Judge of First Dist. Ct., 262 Mass. 477, 482, 160 N.E. 427 (1928). The Commission determines justification for discipline by inquiring, "whether the employee has been guilty of substantial misconduct which adversely affects the public interest by impairing the efficiency of public service." School Comm. v. Civil Service Comm‟n, 43 Mass. App. Ct. 486, 488, 684 N.E.2d 620, rev.den., 426 Mass. 1104 (1997); Murray v. Second Dist. Ct., 389 Mass. 508, 514, 451 N.E.2d 408 (1983) The Appointing Authority's burden of proof by a preponderance of the evidence is satisfied "if it is made to appear more likely or probable in the sense that actual belief in its truth, derived
from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there." Tucker v. Pearlstein, 334 Mass. 33, 35-36, 133 N.E.2d 489 (1956). The Commission is required “to conduct a de novo hearing for the purpose of finding the facts anew.” Falmouth v. Civil Service Comm‟n, 447 Mass. 814, 823 (2006) and cases cited. The role of the Commission is to determine "whether the appointing authority has sustained its burden of proving that there was reasonable justification for the action taken by the appointing authority." Cambridge v. Civil Service Comm‟n, 43 Mass.App.Ct. 300, 304 rev.den., 426 Mass. 1102 (1997). See also Leominster v. Stratton, 58 Mass. App. Ct. 726, 728, rev.den., 440 Mass. 1108, 799 N.E.2d 594 (2003); Police Dep‟t of Boston v. Collins, 48 Mass.App.Ct. 411, rev.den., McIsaac v. Civil Service Comm‟n, 38 Mass App.Ct. 473, 477 (1995); Watertown v. Arria, 16 Mass.App.Ct. 331, rev.den., 390 Mass. 1102 (1983). “The commission‟s task…is not to be accomplished on a wholly blank slate. After making its de novo findings of fact . . . the commission does not act without regard to the previous decision of the [appointing authority], but rather decides whether „there was reasonable justification for the action taken by the appointing authority in the circumstances found by the commission to have existed when the appointing authority made its decision‟”, which may include an adverse inference against a complainant who fails to testify at the hearing before the appointing authority. Falmouth v. Civil Service Comm‟n, 447 Mass. 814, 823 (2006). See Watertown v. Arria, 16 Mass. App. Ct. 331, 334, rev.den., 390 Mass. 1102, 453 (1983) and cases cited. In the instant appeal, for all of the reasons cited in my findings, I base my conclusion primarily on the credible testimony of the Appellants, Christopher Pagliuca and William Leeman, as well as the corroborating testimony of Merrimac Police Officer Adam White, Haverhill Fire Lieutenant Lee Mimms, Trinity EMS Medics Erin Fortin and Carl Rizzo, and
retired State Police Lieutenant Colonel Charles Noyes. It is the function of the hearing officer to determine the credibility of the testimony presented before him. See Embers of Salisbury, Inc. v. Alcoholic Beverages Control Comm‟n, 401 Mass. 526, 529 (1988); Doherty v. Retirement Bd. of Medford, 425 Mass. 130, 141 (1997). See also Covell v. Dep‟t of Social Services, 439 Mass. 766, 787 (2003); (In cases where live witnesses giving different versions do testify at an agency hearing, a decision relying on an assessment of their relative credibility cannot be made by someone who was not present at the hearing); Connor v. Connor, 77 A. 2d. 697 (1951) (the opportunity to observe the demeanor and appearance of witnesses becomes the touchstone of credibility). As indicated in my findings above, the following was unclear on the night of the incident, but it is information which we now know occurred on the evening of March 30, 2012. At approximately 10:30pm, a 2005 white Cadillac Escalade registered to Charles Noyes was travelling through West Newbury, Massachusetts. Charles Noyes was driving that vehicle. He was traveling on Main Street around the area of Baileys Lane when his cell phone, located on the front passenger seat, began to ring. As he reached across to grab his phone he lost control of the vehicle and it struck a telephone pole in West Newbury on Main Street after Training Field Road but before Baileys Lane. The vehicle caused the pole to split and hang into the roadway. The vehicle continued on to strike a traffic signal on the side of the roadway a short distance after the location of the telephone pole. The vehicle continued travelling on Main Street in the direction of Bridge Street and took a right turn onto Bridge Street in West Newbury. The vehicle then continued traveling on Bridge Street, over the Rocks River Bridge – which is located in West Newbury, Merrimac, and Haverhill – until finally coming to a stop on the shoulder of East Main Street in Haverhill.
Sergeant Daniel Cena from West Newbury responded to the accident scene in West Newbury and made observations and spoke to witnesses. He then tracked the fluid trail across the Rock River Bridge and radioed to neighboring Merrimac and Haverhill for assistance. As he approached the end of the Rock River Bridge he noticed Noyes‟ vehicle pulled to the side of the roadway at its final resting place on the shoulder of East Main Street just over the Haverhill line. Officer White from Merrimac made the same observation and followed Sergeant Cena from the end of the bridge to the location of Noyes‟ vehicle. Sergeant Cena then began a police investigation. He continued to observe the fluid trail, he observed the damage to the vehicle, and he approached the driver‟s side window to speak to the operator. Sergeant Cena knocked on the window and the operator rolled the window down. After confirming that the operator was okay, Sergeant Cena asked the operator for his license and registration. At the same time, Sergeant Cena made observations about the operator‟s perceived level of intoxication. After making such observations he asked the operator to conduct a field sobriety test which the operator refused. After receiving Noyes‟ license and registration Cena asked him to exit the vehicle and moved him to the back bumper. Cena continued to make observations about Noyes‟ perceived level of intoxication. Around the same time, Cena noticed certain materials in the door compartments which led him to believe there may be a firearm in the vehicle. Cena questioned Noyes on the firearm which Noyes was licensed to carry and subsequently seized the firearm from inside the vehicle. At this point in time, it is clear that Cena had probable cause to believe that Noyes had committed the crime of operating under the influence. Cena himself testified that he had probable cause for operation on a public roadway due to his observations of the accident scene, his observations of corresponding damage to the vehicle, his observations of the fluid trail, and
his observations of Noyes in the driver‟s seat of the vehicle when he arrived on scene. Cena testified that the only element remaining for him to establish was intoxication which he believed he had established through the above observations. He had established each of the essential elements prior to the arrival of Officer Pagliuca or any other Haverhill officer or employee. He claims he did not make the arrest because he did not have authority to do so, but if he did not believe that he had authority to make the arrest then he would have also believed that he did not have authority to act as a police officer. It appears quite clearly that he held no such belief. Next to arrive on scene was Haverhill Fire. Lieutenant Lee Mimms conducted a sweep of the vehicle for safety purposes and spoke briefly to Noyes who was resting at the back bumper of the vehicle. Mimms did not smell an odor of alcohol or otherwise make observations consistent with intoxication. Trinity EMS was next to arrive with Rizzo driving and Fortin in the passenger seat. When they arrived Fortin exited the ambulance while Rizzo parked. Fortin went over to Noyes and approached him to within eight inches during her initial evaluation. She smelled a faint odor of alcohol at that point, but could not smell any odor of alcohol at any point thereafter. Rizzo approached and made observations as well, he did not smell any odor of alcohol. It was at this point that Officer Pagliuca first arrived on scene. While he was still in his cruiser he spoke to Cena. Pagliuca asked what Cena had and Cena responded that he had the vehicle that left the scene of the accident in West Newbury. Pagliuca asked if the person was intoxicated and Cena responded “legless.” Cena then instructed Pagliuca to park his cruiser so that he could fill him in on the details. Pagliuca proceeded to park his cruiser and use his radio to call for a Sergeant to report to the scene. Pagliuca exited his cruiser and joined Cena, White, Noyes, Fortin, and Rizzo at the bumper of Noyes‟ vehicle. Around this time, Fortin and Rizzo reported that Noyes was refusing treatment and were in the process of retrieving the refusal of
treatment forms. Pagliuca, having called for a Sergeant, asked the medics to wait for his Sergeant to arrive so that he may assess the scene. A short time later Sergeant Miller arrived on scene. Miller spoke to Cena who repeated that he believed Noyes to be intoxicated. Miller then asked Cena what he is going to charge Noyes with and Cena stated that he was going to charge him with reckless operation and leaving the scene, but not operating under the influence. Puzzled, Miller inquired as to why he would charge him with two crimes related to operation of the vehicle but not operating under the influence. This discussion is important because this is the first time that any officer from Haverhill knew that Cena was not going to arrest Noyes. At this point in time, it is beyond dispute that if the scene is Haverhill‟s scene, Miller, not Pagliuca, is the commanding officer in control of the scene. In fact, Chief DeNaro and Deputy Chief Thompson both agree that Pagliuca was correct to have called a Sergeant and that once the Sergeant was on scene it was his scene. Not having made observations of the accident scene in West Newbury, of the fluid trail, of Noyes in the vehicle, or of the vehicle operating on a public roadway, Miller was forced to determine whether he had sufficient probable cause to make an arrest for operating under the influence. Given the jurisdictional and other complications on scene, he called Lieutenant Leeman for counsel. Over the course of multiple telephone conversations it was determined that the officers did not have sufficient probable cause for the elements of operation on a public roadway. On that basis, a decision was made not to arrest Noyes. This was not Pagliuca‟s decision. Notwithstanding the decision not to arrest, Miller approached Cena and explained that although Haverhill does not have sufificent probable cause to arrest for operating under the influence, West Newbury did appear to have sufficient probable cause. Miller further spoke to Noyes and convinced him to receive treatment and to be transported to the hospital. As such,
Miller explained that if Cena summonsed Noyes‟ blood alcohol count at the hospital and charged him with operating under the influence that both he and Pagliuca would testify should the need arise. Once the scene had cleared and Pagliuca had returned to the station, he reported immediately to Lieutenant Leeman. Pagliuca was given Noyes firearm to be logged and he inquired as to whether he should write a report on the incident. Given that no arrest was made, no report was necessary, except as to log the firearm. Leeman told Pagliuca that he should write a miscellaneous report. Confused, Pagliuca inquired as to what a miscellaneous report should contain. Leeman told him to write what he knew and provided examples. That is precisely what Pagliuca did. DeNaro and Thompson take issue with the report because it does not contain facts that go to each of the elements of operating under the influence. It is important to note that the report is not an arrest report for which each of the elements must appear in order to sustain the charges for which the arrest was made. Moreover, Thompson stated that he believes the statements in the report are truthful. Where there was no clear obligation to report in the first place, it appears that Pagliuca is being held to a standard beyond that which he was instructed to do. That is, his report is being analyzed as an arrest report when he was instructed to complete a miscellaneous report. Finally, to this point, if DeNaro or any other supervising officer had reviewed Pagliuca‟s report and believed there to be missing information, they could have and should have instructed him to submit a supplemental report. At no point after Pagliuca submitted his report was he given any indication that he had done anything wrong or that he omitted material information. I find that the Appellant Christopher Pagliuca responded appropriately to the scene. By making this finding, I do not suggest that the incident could not have been handled differently or
that Miller handled his duties appropriately. However, it appears that Pagliuca reported to a scene involving complex jurisdictional and other issues and appropriately radioed for a supervisor. He then went directly to his Lieutenant to determine what further steps he should take including whether or not he should have written a report. There were two experienced police Sergeants on scene, one from West Newbury and one from Haverhill. Whether or not they made the correct decisions and the impetus therefrom should rest solely on them. I further find that the actions of Lt Leeman were appropriate as well. First, he could not leave the station due to the order from the Chief ordering Shift Commanders to stay in the station unless responding to a significant accident. This was not a significant accident but rather a routine traffic accident. Further, Leeman‟s other assigned sergeant was at another motor vehicle accident. I find that Leeman attempted to find any case to assist him with a possible OUI charge against Noyes when he diligently researched caselaw but could not find anything that would substantiate such a charge. Finally, I credit his testimony at the end of the evening when he spoke to Miller and Pagliuca, and told them to write down everything they saw. Even if I were to determine that it was appropriate to discipline either or both of the Appellants, the Commission must determine if the City was justified in the level of discipline imposed, which, in this case, was a five-day suspension for Christopher Pagliuca and a ten-day suspension for Lieutenant Leeman. The Commission is guided by “the principle of uniformity and the „equitable treatment of similarly situated individuals‟ [both within and across different appointing authorities]” as well as the “underlying purpose of the civil service system „to guard against political considerations,
favoritism and bias in governmental employment decisions.‟ ” Falmouth v. Civil Service Comm‟n, 447 Mass. 814, 823 (2006) and cases cited. Even if there are past instances where other employees received more lenient sanctions for similar misconduct, however, the Commission is not charged with a duty to fine-tune employees‟ suspensions to ensure perfect uniformity. See Boston Police Dep‟t v. Collins, 48 Mass. App. Ct. 408, 412 (2000). “The „power accorded the commission to modify penalties must not be confused with the power to impose penalties ab initio, which is a power accorded the appointing authority.‟ ” Falmouth v. Civil Service Comm‟n, 61 Mass. App. Ct. 796, 800 (2004) quoting Police Comm‟r v. Civil Service Comm‟n, 39 Mass.App.Ct. 594, 600 (1996). Unless the Commission‟s findings of fact differ significantly from those reported by the appointing authority or interpret the relevant law in a substantially different way, the commission is not free to “substitute its judgment” for that of the appointing authority, and “cannot modify a penalty on the basis of essentially similar fact finding without an adequate explanation” E.g., Falmouth v. Civil Service Comm‟n, 447 Mass. 814, 823 (2006). There are two very clear reasons that lead me to conclude that Pagliuca was treated differently than other similarly situated Haverhill officers. First, there is the incident in 2006 involving the unidentified officer who reported to the scene of a multi-vehicle accident involving two citizens in which one of the operators was potentially intoxicated. Not only did the officer not investigate the incident, but the officer drove the operator home without reporting the incident. There is no justification, whether it be lack of experience or otherwise, which would lead a reasonable police officer to believe that it is acceptable practice to fail to investigate a potential operating under the influence without calling for the assistance of a sergeant, drive the person home, and then fail to report the incident altogether. That incident, unlike the Noyes
incident, did not receive any media attention.12 That officer received a letter of reprimand and retraining. Next, there is the Fogarty incident. In the Fogarty incident, the two officers reported to an accident scene in Haverhill, observed an off duty Haverhill police officer and observed indicia of intoxication. They did not radio for a Sergeant to report but instead used a private cell phone to contact Sergeant Miller so as to keep their conversation off the recorded line. Sergeant Miller reported to the scene and instead of investigating the scene and making an arrest he failed to investigate or report. The two officers did not conduct any investigation, nor did they write any reports on the incident. That incident, unlike the Noyes incident, did not receive any media attention and was not publically disclosed until the investigation of the instant matter. The two officers were not disciplined at all because they appropriately called their Sergeant to the scene and subordinated themselves to his control. Sergeant Miller, however, was disciplined in the form of a five day suspension for failure to investigate and report. Contrasting the above incidents with the instant matter it becomes clear that the Chief and the City were motivated by the media attention and blame that Haverhill was receiving as a result of the Noyes incident. It appears that the investigation began because of the media scrutiny and demand for answers. The investigation dragged on for over a month and a half and concluded the day after a published article that once again stated that Haverhill still had not released any information or given any answers. The officers were notified of the decision to discipline on May 29, 2012 and only two days later, the City released the entire un-redacted investigative file as well as protected personnel information. The City‟s release of protected information is only further evidence of their underlying motivation. The Leeman v. Cote matter between some of the
Chief DeNaro testified that he could not recall reading anything in the paper about this incident, but that if he did he would have a specific memory of doing so.
very same parties to the instant matter makes clear that the City was well aware of the fact that officer names, addresses, and disciplinary reports are protected from public disclosure. As a means of deflecting any negative media attention away from the Chief and the City in general, it is abundantly clear that the City disciplined its officers for the purpose of responding to the media scrutiny. The City‟s motivation in the instant matter has led to a faulty investigation, disregard for comparative discipline, disregard for officer privacy, and undue public admonishment to Officer Christopher Pagliuca and Lieutenant William Leeman. For all of the above reasons, the Appellants‟ appeal under Docket No. D-12-346 and D-12342 is hereby allowed. Civil Service Commission
________________________________ Christopher C. Bowman, Chairman
By vote of the Civil Service Commission (Bowman, Chairman; Henderson, Marquis and Stein, Commissioners [Taylor – Absent]) on May 14, 2009. A true record. Attest:
___________________ Commissioner Either party may file a motion for reconsideration within ten days of the receipt of a Commission order or decision. Under the pertinent provisions of the Code of Mass. Regulations, 801 CMR 1.01(7)(l), the motion must identify a clerical or mechanical error in the decision or a significant factor the Agency or the Presiding Officer may have overlooked in deciding the case. A motion for reconsideration shall be deemed a motion for rehearing in accordance with G.L. c. 30A, § 14(1) for the purpose of tolling the time for appeal. Under the provisions of G.L c. 31, § 44, any party aggrieved by a final decision or order of the Commission may initiate proceedings for judicial review under G.L. c. 30A, § 14 in the superior court within thirty (30) days after receipt of such order or decision. Commencement of such proceeding shall not, unless specifically ordered by the court, operate as a stay of the Commission‟s order or decision.
Notice: Joseph A. Padolsky, Esq. (for Appellant) Stephen C. Pfaff, Esq. (for Appellant) Rachel Munoz, Esq. (for Appointing Authority)
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