Bourne, Fire Firefighter Richard Doherty Reach Tentative Settlement Agreement

By: Michael J. Rausch and Diana T. Barth
Published: 11/29/12

The town has reached a tentative settlement agreement with former Bourne firefighter Richard J. Doherty, who was fired from the Bourne Fire Department in February of 2011, primarily over reportedly obscene and derogatory comments about fellow town employees that town officials said had sometimes been posted on his Facebook page during work hours.

A Settlement Order of Dismissal was filed in Mr. Doherty’s federal suit against Town Administrator Thomas M. Guerino and the Town of Bourne on November 20, but that dismissal left the parties to the suit with the right to reopen that court action within 60 days if the settlement is not finalized.

Harold Lichten, the attorney who represented Mr. Doherty in the suit filed in federal court, had argued that his client’s First Amendment rights protected his Facebook postings. Reached this week by telephone, he said Mr. Doherty is “looking forward to getting on with his life.”

Mr. Lichten said that while the settlement was dismissed “without prejudice to the right of any party…to reopen the action within sixty days if settlement is not consummated,” he does not see any likelihood that the federal case would be reopened.

“No, it is settled,” he said.

Mr. Lichten said that his client is currently living in northern Maine “trapping, hunting and fishing.”
Attempts to reach Mr. Doherty at his new home in Sangerville were unsuccessful.

Mr. Guerino said yesterday that Bourne is working toward the negotiation of a global settlement of all of the cases filed by or on behalf of Mr. Doherty, including those in federal court, before the Civil Service Commission, and with the state’s Division of Labor Relations.

Town Attorney Robert S. Troy said that there is an agreement in principal to a global settlement, but that agreement “has not been reduced to writing or executed by either party.”

Mr. Doherty was fired by Mr. Guerino last year for making critical comments about town officials on his Facebook page. An investigation by Hyannis attorney Charles M. Sabatt revealed that some of the comments were directed at superior officers and allegedly made while Mr. Doherty was working, which meant, the town contended, that he was derelict in his duties. The town decided that the posts violated rules against “conduct prejudicial of good order,” as well as a prohibition against rude or insolent conduct to any member of the public or to fire department employees.

Mr. Doherty appealed his termination to the Division of Administrative Law Appeals, the agency that investigates termination appeals for the Civil Service Commission.

In March, Magistrate Judithann Burke ruled that the town was within its rights to punish Mr. Doherty, and chastised him for not seeking other ways of channeling his criticisms. In her ruling, however, Ms. Burke stated that termination was too severe a punishment for the offenses and instead, recommended a 15-month suspension.

In June, the Civil Service Commission said that it agreed with Ms. Burke’s ruling that termination was too severe. That meant that Mr. Doherty was free to either return to work or, alternatively, retire on disability. In July, the state awarded Mr. Doherty accidental disability because he is permanently disabled. The nature of his disability is private and protected.

The commission also agreed with Ms. Burke that there were rule violations committed by Mr. Doherty. The board said that he used “obscene, indecent, and disrespectful language which was discourteous, rude and insolent.”

The commission wrote in its decision that it “carefully considered—and rejected—the unpersuasive arguments of Mr. Doherty that these actions were part of protected speech.”

Mr. Guerino said Tuesday that both sides are working out the details of this settlement agreement. Yesterday, Mr. Guerino said that the draft settlement calls for full confidentiality, and provided no further comment. Town officials and attorneys representing both sides in each of the lawsuits brought by Mr. Doherty did not answer any questions regarding the details of the settlement.

Any global settlement of all of the legal matters involving Mr. Doherty will also need to address the issue of his right to return to the Bourne Fire Department.

The order of dismissal of Mr. Doherty’s federal suit was “without costs,” meaning that each of the parties will pay its own legal fees.

Selectman John A. Ford Jr. said this week that he expects the town’s cost of any settlement with Mr. Doherty to be split between the town itself and its insurers. He said he thinks any settlement will cost the town far less than the legal fees the town would otherwise need to expend to defend against the various cases.