SALEM, MA – SALEM — The Appeals Court has upheld the firing of a former Salem firefighter who was accused of misappropriating union funds while president of the firefighter’s union.
In an unpublished decision released on Wednesday, the three-judge panel concluded that the Civil Service Commission’s ruling upholding John O’Leary’s firing back in 2013 was supported by evidence of “substantial misconduct” by O’Leary.
O’Leary was president of the Salem Firefighters Union from 2002 until 2010. The union had established a charitable fund that, over that period, raised approximately $344,000 through fundraisers and donations. Nearly two-thirds of that amount, however, ended up going to a professional fundraising company, All Pro Productions, and toward other expenses.
City officials had estimated that $25,000 was misappropriated by O’Leary; the Civil Service Commission put the figure much lower, at $2,100, but concluded that the conduct warranted termination.
The Appeals Court agreed.
“The main purpose of the fundraising account was to ‘burnish’ the image of the local firefighters union, and the plaintiff’s misconduct only served his own purposes: using fake donations to local charities as cover for his own embezzlement,” the Appeals Court decision says, echoing comments by the Civil Service chairman in his 2013 ruling. “This misconduct also spurred a lack of trust in the department, and termination was warranted.”
O’Leary went to Superior Court in 2014 to appeal the commission’s decision.
Last January, Lawrence Superior Court Judge Robert Cornetta granted a motion by the city of Salem and the commission for summary judgment, dismissing the case. O’Leary appealed and Wednesday’s decision is the result.
O’Leary’s attorney, Joseph Dever, had argued that city officials withheld evidence that might have helped his defense.
The Appeals Court found, however, that Cornetta was under no obligation to accept those materials during O’Leary’s initial appeal.
Dever said on Wednesday he’s “disappointed” that the Appeals Court also chose to “turn a blind eye to the fact that the union fabricated the findings” (an audit) that were used to justify O’Leary’s termination.
The court also rejected an argument that O’Leary was treated unfairly in comparison to other employees.
“The commission found essentially the same facts and misconduct as the city had found, and the commission determined that the sanction of termination was appropriate in this case where the plaintiff had misappropriated charitable funds and made false statements including some ‘wildly unbelievable’ testimony,” the court said. “The motion judge appropriately concluded that termination was within the range of options the city had available to it.”
“Misappropriating funds destined for charitable uses, as well as lying to his superiors and fellow firefighters about such misconduct, is certainly adverse to the public interest,” the court concluded.
Asked if he’ll seek a further appeal, Dever said he will go over the decision with O’Leary “and then we’ll decide what, if anything, we’ll do.”
While his appeal of his firing was ongoing, O’Leary was arrested and charged with domestic abuse; he subsequently reached a plea agreement in the case in 2013 and received a “split” 2 1/2 year jail sentence, with 18 months to be served and the balance of the time suspended for three years.
From The Salem News