Disparate Treatment May Be Defense To Dishonesty Termination

The Town of West Bridgewater, Massachusetts terminated Daniel Desmond from the position of police officer for his “continued pattern of lying/perjury and conduct unbecoming a police officer.” The charges against him arose out of his relationship with a married woman referred to as Mrs. A. Ultimately, Mrs. A. completed an application for a restraining order against her husband. Desmond called the Brockton Police Department to obtain information about who was on duty. Desmond denied – ultimately under oath in Brockton District Court on September 9, 2013 – that he assisted Mrs. A. in completing the application for the TRO. However, the Town obtained a videotape showing that Desmond was present when Mrs. A. filled out the application.

The Town’s termination letter cited several other instances of Desmond’s dishonesty:

• Desmond testified in District Court that he had never seen Mrs. A.’s affidavit when, in fact, he had seen the affidavit while she was preparing it and while Mrs. A. was in a separate room talking to an on-call judge.

• Desmond testified in District Court that he never came into the courthouse on September 9, 2013, when he came into the courthouse with Mrs. A., escorted her to the clerk’s office and left the building without entering the court room.

• Desmond testified in District Court on November 8, 2013 that he had never been to Mrs. A.’s house, when he had in fact been there only six days earlier.

• On December 23, 2013, in response to a question from Brockton Police Officer Christopher Perez, Desmond denied being in the neighborhood when in fact he had been, as verified by a license plate reported by a neighbor. Only then did Desmond admit that he had been there. On December 25, 2013, Desmond’s report of the events omitted the exchange between Officer Perez and himself.

The Town’s Civil Service Commission upheld Desmond’s termination. In his subsequent court challenge to the Commission’s decision, Desmond argued that the Commission improperly failed to consider evidence that the Town had given more lenient treatment to an officer who had committed more serious misconduct.

In particular, Desmond presented proof that the Town took no disciplinary action against a fellow officer, Officer Kominsky, despite facts that provided the Town with ample reason to review whether that police officer Kominsky should be terminated, which he wasn’t. In a federal prosecution entitled United States v. Henderson, District Judge Mark Wolf found that Patrolman Kominsky was “perhaps the worst law enforcement witness who was trying to be candid, assuming he was trying to be candid, that I’ve ever encountered.”

The United States Court of Appeals for the First Circuit found Officer Kominsky’s testimony “riddled with implausibilities and inconsistencies, and that it was disbelieved by the District Court in important respects and contradicted by law enforcement witnesses in others.” As a result, the First Circuit vacated Mr. Henderson’s conviction, including his sentence to 16 years of incarceration.

In overturning Desmond’s termination, a trial court found that “the Commission failed to make the necessary findings. For one thing, it failed to find sufficient facts to determine whether the Town violated the principle of uniformity and equitable treatment in terminating Desmond, while retaining Officer Kominsky. It called the Town’s failure to discipline Officer Kominsky a ‘perplexing action.’ That only states the issue. The Commission found the failure to discipline Officer Kominsky ‘more troubling’ than the Town’s additional failure to discipline the Police Chief for an instance of dishonesty.

“In fact, the Town never offered an explanation for retaining Kominsky and terminating Desmond. Kominsky’s blatant falsehoods, resulting in a conviction and 16 years of prison time, later vacated, were much worse than Desmond’s conduct and involved highly material matters leading to prosecution, conviction and 16 years of prison time for the accused. No legitimate or rational explanation appears. Indeed, Officer Kominsky’s false testimony was highly material, while Desmond’s had little or no materiality to the ultimate decision. By retaining Officer Kominsky, the Town set its own exceedingly high threshold for discipline, namely that its policies tolerate continued employment of a police officer who has committed such conduct. If the Town now intends to announce a new policy to raise that threshold (as to past conduct) for Desmond, it must do so in a fair and uniform manner that does not violate Civil Service principles.

“On this record, there are insufficient findings to draw a conclusion favorable to the Town. Short of fine tuning discipline to obtain perfect uniformity, the Commission has a duty to articulate findings that support a conclusion of uniform and fair treatment as required by the Civil Service laws. Of course, remand may also allow the Town to choose how to remove favoritism from its disciplinary process.”

Desmond v. Town of West Bridgewater, 2016 WL 3145954 (Mass. Super. 2016).