1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. CIVIL SERVICE COMMISSION One Ashburton Place – Room 503 Boston, MA 02108 (617) 727-2293 DAVID AGUIAR, Appellant v. Case No. D1-12-19 CITY OF NEW BEDFORD, Respondent Appearance for Appellant: William M. Straus, Esq. Law Office of William M. Straus 15 Hamilton Street New Bedford, MA 02740 Appearance for Respondent: Jane Medeiros Friedman, Esq. First Assistant City Solicitor City of New Bedford Law Department 133 William Street New Bedford, MA 02740 Commissioner: Paul M. Stein 1 DECISION Procedural History Pursuant to G.L. c. 31, § 43, the Appellant, David Aguiar, duly appealed to the Civil Service Commission (Commission) from the decision of the Respondent, City of New Bedford (City) to terminate him from his employment as a Lieutenant with the New Bedford Fire Department (NBFD). A pre-hearing conference was held on February 10, 2012 at the UMass School of Law in Dartmouth, Massachusetts and six (6) days of full hearing were held at that location on: May 17, 2012; May 18, 2012; June 15, 2012; July 20, 2012; August 15, 2012; and August 17, 2012. The witnesses were sequestered. The hearing was digitally recorded. Each party submitted a post-hearing Proposed Decision on October 30, 2012. 1 The Commission acknowledges the assistance of Law Clerk Beverly J. Carey, Esq., in the drafting of this decision.
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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. CIVIL SERVICE COMMISSION
One Ashburton Place – Room 503
Boston, MA 02108
(617) 727-2293
DAVID AGUIAR,
Appellant
v. Case No. D1-12-19 CITY OF NEW BEDFORD,
Respondent
Appearance for Appellant: William M. Straus, Esq.
Law Office of William M. Straus
15 Hamilton Street
New Bedford, MA 02740
Appearance for Respondent: Jane Medeiros Friedman, Esq.
First Assistant City Solicitor
City of New Bedford Law Department
133 William Street
New Bedford, MA 02740
Commissioner: Paul M. Stein1
DECISION Procedural History
Pursuant to G.L. c. 31, § 43, the Appellant, David Aguiar, duly appealed to the Civil
Service Commission (Commission) from the decision of the Respondent, City of New Bedford
(City) to terminate him from his employment as a Lieutenant with the New Bedford Fire
Department (NBFD). A pre-hearing conference was held on February 10, 2012 at the UMass
School of Law in Dartmouth, Massachusetts and six (6) days of full hearing were held at that
location on: May 17, 2012; May 18, 2012; June 15, 2012; July 20, 2012; August 15, 2012; and
August 17, 2012. The witnesses were sequestered. The hearing was digitally recorded. Each
party submitted a post-hearing Proposed Decision on October 30, 2012.
1 The Commission acknowledges the assistance of Law Clerk Beverly J. Carey, Esq., in the drafting of this
decision.
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FINDINGS OF FACT
Based on the thirty-three (33) exhibits entered into evidence, the stipulations of the
parties, the testimony of the following nineteen (19) witnesses:
Called by the City:
Mr. David Jesus, Firefighter, NBFD;
Mr. Brandon Silva, Firefighter, NBFD;
Mr. Norman Luke Charbonneau, Lieutenant, NBFD, Fire Prevention Bureau;
Mr. Robert Frates, District Chief, NBFD;
Mr. Michael Coffey, Firefighter, NBFD;
Mr. Scott Kruger, District Chief, NBFD;
Mr. Scott Andrew Gomes, Captain, NBFD;
Mr. Richard Spoor, Firefighter, NBFD;
Mr. Paul Coderre, Deputy Chief, NBFD;
Ms. Jennifer Carrita, Paramedic, City;
Mr. Ralph Isherwood, Paramedic, City;
Mr. Lionel Tetreault, Lieutenant, NBFD;
Mr. Michael Gomes, Fire Chief, NBFD;
Called by Mr. Aguiar:
Mr. James Allen, Retired Lieutenant, NBFD;
Mr. William Cabral, Firefighter, NBFD;
Mr. Clinton Allen, Retired Firefighter, NBFD;
Mr. Micheal Pimental, Firefighter, NBFD;
Mr. Steven Sousa, Firefighter, NBFD;
Mr. David Aguiar, Appellant;
and reasonable inferences therefrom, a preponderance of the evidence establishes these facts:
The Appellant’s Employment History
1. Mr. Aguiar was appointed to the civil service position of permanent firefighter with the
NBFD on or about February 24, 1986. He was promoted to the rank of Lieutenant on or
about March 15, 1998. (Ex. 12)
2. Prior to the incidents that give rise to the present appeal, Mr. Aguiar had been disciplined on
four occasions, three of which arose after he had been promoted to Lieutenant.
a. In 1994, Firefighter Aguiar received a thirteen (13) hour suspension for using
obscenities in refusing District Chief Ernest Oliviera’s direct order to shave. (Ex. 25)
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b. In 2005, Lt. Aguiar was suspended for twenty-four (24) hours for his refusal to obey an
order given to him by Acting Chief Leger during a hazardous materials (“haz-mat”)
incident, and stating, in the presence of his crew and other members of the command
staff that he was “not going to enter that f---ing building.” (Ex. 26)
c. On or about May 6, 2008, Mr. Aguiar received a written reprimand for failing to act on
an order given to him by Dist. Chief Paul Coderre, Sr. on or about February 28, 2008.
(Ex. 27)
3. Another 2008 disciplinary proceeding had resulted in an order for involuntary transfer of
assignment with Engine Co. 11, but that dispute was subsequently settled by mutual
agreement of the parties, Lt Aguiar’s lost overtime was restored and he was permitted to
return to his prior assignment. (Exh.28ID; Testimony of Appellant & Ret. Lt. Allen)
4. During 2006 and 2007, Lt. Aguiar worked under then-Dist. Chief Michael Gomes, who
would later become NBFD Fire Chief in January 2011. (Testimony of Appellant & Chief
Gomes)
5. As Dist. Chief, Michael Gomes had formed the opinion, which he expressed at least once to
others, that the predecessor Fire Chiefs had been too lenient on Lt. Aguiar who “should have
been fired a long time ago and made to fight get his job back.” Also, while serving as Dist.
Chief, he had also told another firefighter that Lt. Aguiar had written a letter (which Lt.
Aguiar placed in the June 2007 timeframe) which Dist. Chief Gomes believed could have
“damaged my career.” (Testimony of Appellant, Chief Gomes, Lt. Tetreault & FF Pimental)
The Training Event at Aviation Way
6. On or about August 5, 2011, a training exercise was being conducted at Aviation Way with
Lt. Aguiar’s company, Engine 5, and two other fire companies The training officer was
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Capt. Scott Gomes, who is Chief Gomes’s brother. (Testimony of Appellant, Capt. Gomes
& Lt. Tetreault)
7. The training began at approximately 10:30 AM. The first round of training drills was
completed sometime between 11:30 and 11:45 AM. At this point, FF Souza had asked Lt.
Aguiar if they were going to break for lunch. Lt. Aguiar asked Capt. Gomes if the drill was
complete, and when he was told that it was not complete yet, Lt. Aguiar then asked if they
were going to break for lunch, to which Capt. Gomes replied that they were not going to
break for lunch because he wanted the company to stay another forty-five (45) minutes or so
and he had another drill scheduled for 1:00 PM that day with another company. (Testimony
of Appellant, Capt. Gomes & FF Souza)
8. At this point, Capt. Gomes got annoyed and leaned into Lt. Aguiar and said: “You got to be
shitting me, you are going to bitch about lunch? What if this was a fire?” Lt. Aguiar
responded: “It’s not a fire, it’s a drill. Your brother used to say the same kind of thing.”
This last remark set off Capt. Gomes and who said: “Don’t you ever f—ing mention my
brother” and the argument “went down the tubes from there”. At one point, Capt. Gomes
told Lt. Aguiar that he could take a test to get to a level where he could make the changes he
wanted in the department, he could quit, or he could “shut the f—k up.” Cpt. Gomes
relieved Lt. Aguiar from duty and radioed to fire alarm that Engine 5 was returning and had
refused to participate in the drill. Capt. Gomes then walked away, towards the area where
Engine 8 was setting up for the drill. (Testimony of Appellant & Capt. Gomes)
9. Lt. Aguiar walked back over to Captain Gomes, who then was standing alongside Lt.
Tetreault, and made a hand gesture and another profane comment about Capt. Gomes and
his brother, Chief Gomes. Capt. Gomes turned to Lt. Tetreault and said: “Did you hear that.
You are my witness” to which Lt. Tetreault responded: ‘Yes, unfortunately I did.” Lt.
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Tetreault found the behavior of both Capt. Gomes and Lt. Aguiar inappropriate. (Exh. 24;
Testimony of Capt. Gomes & Lt. Tetreault)
10. Dep. Chief Frates responded to the scene of the training exercise to find Engine 5 at the top
of the street, with Lt. Aguiar and FF Jesus outside the apparatus. Lt. Aguiar reported that
FF Jesus was being insubordinate by refusing to drive Engine 5. FF Jesus had told Lt.
Aguiar that “nobody wants to work with you” and “you are not as smart as you think you
are.” Lt. Aguiar admitted he had “disrespected” FF Jesus but then offered to “put the
incident behind him and forget it ever happened if you are.” FF Jesus responded: “I don’t
kiss anyone’s ass, write me up.” Dist. Chief Frates then transported FF Jesus back to the
fire house. As a result of this incident, FF Jesus was transferred from Lt. Aguiar’s crew to
another temporary assignment. (Exhs. 16 & 18; Testimony of Appellant, Dist. Chief Frates
& FF Jesus)
11. Capt. Gomes acknowledged that, as the senior ranking of the two officers involved, he took
more responsibility for the altercation getting out of hand because it was his duty to
“diffuse” the situation. He also acknowledged his prior departmental history of verbal
altercations and discipline following arguments with a superior officer. For his failure to act
appropriately in the August 5, 2011 verbal altercation with Lt. Aguiar, Capt. Gomes was
40. Another incident of alleged misconduct by Lt. Aguiar that was raised by FF Coffey’s
memorandum to Chief Gomes involved Lt. Aguiar’s use of personal leave to avoid
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responding to a General Alarm Fire that occurred during the afternoon of July 10, 2011.
This situation was based on discrepancies found in the department’s personnel records and
information provided by FF Coffey that Lt. Aguiar was not seen that day until after the
company had returned from the fire. (Exh.33; Testimony of FF Coffey)
41. Lt. Aguiar had, in fact, taken ten hours of personal leave on July 10, 2011, commencing at
8:00 am and reported to duty at the station at approximately 6 pm. His “senior man”, FF
Sousa had been left in charge and duly served as the acting company commander of Engine
5 during the fire incident. No witness remembered when the fire was extinguished. No
evidence established that Lt. Aguiar knowingly extended his the personal leave to avoid
responding to a fire. The record discrepancy that seemed to imply otherwise turned out to be
a scrivener’s mistake on FF Sousa’s part, for which both he and Lt. Aguiar acknowledged
responsibility.(Exh.33;Testimony of Appellant, Dist. Chief Frates & FF Sousa)
42. In their memoranda to Chief Gomes, FF Coffey and FF Jesus further reported that Lt.
Aguiar had, on one or more occasions, left duty before the replacement officer had reported,
leaving the station out of service with only two firefighters on duty. FF Silva remembered
one occasion but could not recall the specifics. Dep. Chief Frates remembered that two other
firefighters had made a similar complaint to him. Neither the date(s) of the incident(s) nor
the particular circumstances were provided. (Exhs. 16 & 20; Testimony of Dep. Chief
Frates, FF Coffey, FF Jesus & FF Silva)
Interpersonal Conflict with Subordinates
43. Station 5 is the northern most station in the NBFD and is known as a “quiet” assignment,
with fewer calls for service than other stations located in the more populated inner city area
of New Bedford. In fact, during Lt. Aguiar’s final tenure there in 2010-2011, the Sawyer
Street fire was the only major fire to which Lt. Aguiar’s company at Station 5 was called to
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respond, and that was as a back-up. Thus, the assignment is coveted by senior firefighters to
finish out one’s career, while junior firefighters tend to prefer assignments that provide more
activity. In particular, FF Jesus waited years before he was able to successfully bid to get
assigned to Station 5, only to be ‘bumped” to another station in 2009 by another senior
firefighter in a reduction in force, and win back what FF Jesus considered “his slot” at
Station 5 in September 2010. (Testimony of Appellant, FF Jesus, FF Silva & FF Cabral)
44. Both FF Coffey and FF Jesus expressed a clear disdain for working under Lt. Aguiar. FF
Coffey did not believe that Lt. Aguiar had the “ability to lead his crew at medical or fire
calls.” FF Jesus had no “respect” for Lt. Aguiar and “did not trust him.” (Exh. 16; Testimony
of FF Coffey & FF Jesus)
45. Both FF Coffey and FF Jesus “bid” onto the work group (Group A) at Station 5 and knew
that Lt. Aguiar was the commanding officer of that work group at Station 5. (Testimony of
FF Jesus, FF Coffey & FF Cabral)
46. During the period that FF Jesus served as a member of Lt. Aguiar’s crew (from
approximately September 2010 until his temporary transfer in August 2011), FF Jesus
joined the marine unit along with three (3) other members of the crew: Lt. Aguiar, FF Silva,
and FF Souza. Lt. Aguiar and FF Souza later quit the unit. When FF Jesus thereafter
attended marine unit training, which was required every few weeks, Lt. Aguiar complained
to FF Jesus that the company was being left short-handed when he went “boating”. FF
Coffey also heard Lt. Aguiar making such comments about leaving the company
shorthanded when FF Jesus left for marine duty. (Exhs. 16 & 19; Testimony of Appellant,
FF Jesus & FF Coffey)
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47. Lt. Aguiar also commented to FF Silva about taking time to attend to marine duty and
leaving the crew short and FF Silva heard Lt. Aguiar’s similar comments to FF Jesus, but FF
Silva never took any of the comments as derogatory in nature. (Testimony of FF Silva)
48. At some time during 2010 or 2011, Lt. Aguiar expressed, while in the presence of FF
Coffey and FF Jesus in the kitchen of Station 5, that he was uncomfortable about responding
to “haz-mat” incidents, indicating that he had declined to respond in the past when he
believed the risk was unacceptable and, in the future, he had would “have to assess the
situation before he responded”. Both firefighters took offense to this remark as it implied to
them that he would send his crew to the scene “on their own” without him, but FF Coffey
acknowledged that the comment could equally have implied that Lt. Aguiar meant he would
be especially careful as a commanding officer before ordering others into a dangerous
situation. (Exh. 20; Testimony of FF Coffey & FF Jesus)
49. The criticism expressed by FF Coffey and FF Jesus about Lt. Aguiar’s abilities as an
company commander were not shared by most of the other twenty or so other firefighters
who worked under Lt. Aguiar. FF Souza, who worked under Lt. Aguiar during his last tour
at Engine 5, held him in high esteem as an “intelligent, aggressive” officer and said he found
it “insulting” that Lt. Aguiar was accused of such tactics as intentionally delaying a response
to a fire scene. FF Cabral and FF Silva, who had worked under Lt. Aguiar when assigned to
Engine 5 and prior, also complimented Lt. Aguiar’s work ethic. (Testimony of Appellant, FF
Souza, FF Cabral, FF Silva & Ret. FF Allen)
Termination Proceedings
50. In a letter dated December 12, 2011, to which were attached 236 pages of documents dating
back to 2003, Chief Gomes provided written notice to Lt. Aguiar that he was contemplating
his termination for Lt. Aguiar’s failure to conduct himself in a manner consistent with the
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expectations of an officer of the NBFD and for violations of the Standard Operating
Procedures and Rules and Regulations of the Department. Lt. Aguiar was informed that a
hearing on these charges would take place on December 19, 2011. (Exhs.1A, 1B, 1C[ID]
through 1J[ID])
51. At no time prior to writing the December 12, 2011 letter, did Chief Gomes notify Lt. Aguiar
of the specific charges against him or seek to obtain his explanation for any of the incidents
either by interviewing him or requesting that he submit a written response to any of the
charges alleged against him. (Testimony of Appellant & Chief Gomes)
52. On January 3, 2012, Chief Gomes conducted the hearing to consider Lt.. Aguiar’s
contemplated termination. On advice of counsel, Lt. Aguiar did not testify. (Exh.2;
Representation of Appellant’s Counsel; Testimony of Chief Gomes)
53. By letter dated January 4, 2012, Chief Gomes informed Lt. Aguiar that he was terminated
from his position with the NBFD, effective January 5, 2012. (Exh.2)
54. The reasons for termination included:
(1) “failure to use proper judgment” when presented with the no signal fire on Leroy
Street on or about August 11, 2011;
(2) failure to be “an active participant in providing care and assistance during medical
calls”; (3) “at many emergency scenes you allow your company to operate with minimal
participation [from you] . . . “you have delayed your companies’ participation or
withdrawn it . . . and are compounded by your failure to comply with orders at
emergency scenes” and “also have been conspicuously absent during major fires and
Haz-Mat incidents”; (4) failure to “ensure that the Department rules and regulations are followed” and “to
ensure good order” and to “lead their company by setting an example”, including, in
particular, completing accurate reports and paperwork, and failure to conduct drills
and inspections, and “you have abandoned your post without proper relief”; and (5) “conducted yourself in a disrespectful manner to superior officers on multiple
occasions” and “inappropriate actions with subordinate members of your crew have
resulted in a hostile work environment”.
(Ex. 2)
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CONCLUSION
Summary
The City of New Bedford has chosen a few minor ministerial errors and one isolated
incident of intemperate behavior by Lt. Aguiar as the grounds to terminate his career as a NBFD
fire officer without just cause. Chief Gomes’s decision to discharge Lt. Aguiar was based, in
significant part, on misinformation and, more troubling, upon his personal dislike for, and his
subjective, unfavorable opinion of Lt. Aguiar, formed over a period of years which, despite
Chief Gomes’s assurances to the contrary, materially clouded his judgment about the severity of
the relatively minor charges properly proved against Lt. Aguiar, none of which implicated core
public safety concerns or involved conduct that could not have been remediated by lesser or no
discipline, as was meted out to other officers similarly situated in most of the incidents in
question. The termination will be modified to a suspension of 5 tours (110 hours) and Lt.
Aguiar shall be entitled to reinstatement to his position as a NBFD Lieutenant.
Applicable Legal Standards
A tenured civil service employee may be discharged for “just cause” after due notice and
hearing upon written decision “which shall state fully and specifically the reasons therefore.”
G.L.c.31,§41. An employee aggrieved by the decision may appeal to the Commission. G.L.
c.31, §43. Under Section 43, the appointing authority carries burden to prove to the Commission
by a “preponderance of the evidence” that there was “just cause” for the action taken. Id. See,
e.g., Falmouth v. Civil Serv. Comm’n, 447 Mass. 814, 823 (2006); Police Dep’t of Boston v.
Collins, 48 Mass.App.Ct. 411, rev.den., 726 N.E.2d 417 (2000). In performing its function:
. . .the commission does not view a snapshot of what was before the appointing
authority . . . the commission hears evidence and finds facts anew. . . . [after] a
hearing de novo upon all material evidence and . . . [t]here is no limitation of the
evidence to that which was before the appointing officer. . . . For the commission,
the question is . . . “whether, on the facts found by the commission, there was
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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.”
Leominster v. Stratton, 58 Mass. App. Ct. 726, 727-28 (2003) (quoting Watertown v. Arria, 16
Mass. App. Ct. 331, 334 (1983) (emphasis added)). See also Falmouth v. Civil Serv. Comm’n,