The Massachusetts Civil Service Commission has denied a request from the Town of Bourne for reconsideration of a commission decision regarding the termination of former Bourne firefighter Thomas F. Swartz. The commission stated in its denial that the town had failed to provide in its request sufficient evidence to justify reconsideration.
The former firefighter was released from the department following an incident involving transport of a young man from his home to a hospital and comments allegedly made to the teenager and his mother by Mr. Swartz.
“The commission finds that Bourne’s motion for reconsideration has failed to identify a clerical or mechanical error in the commission’s decision or a significant factor the commission or the presiding officer may have overlooked in deciding the case,” the commission stated in its denial of Bourne’s request.
In an emailed response, Joseph L. Sulman, attorney for Mr. Swartz, said he and his client “are pleased with the commission’s ruling.” Mr. Sulman added that the commission’s decision was not unexpected.
“We fully anticipated that the commission would reject the Town’s request for reconsideration as the motion simply rehashed the same arguments that were considered in the original decision,” he said.
In January 2018, Mr. Swartz and another firefighter responded to a medical call of an 18-year-old male who was experiencing a seizure. There was a strong aroma of marijuana in the house, and the mother explained that her son smokes marijuana for his seizures.
During the ride to the hospital, Mr. Swartz reportedly commented to the young man that his drug use “had consequences for everybody involved” and that he needed to “grow up.” At the hospital, according to the mother, Mr. Swartz told her, “If that’s what he wants to do, maybe he should be on his own.”
The comments were not included in an initial report on the call written by Mr. Swartz. Former Bourne Fire Chief Norman P. Sylvester found out about the comments from the other firefighter on duty, who wrote an addendum to the report. Chief Sylvester initially placed Mr. Swartz on administrative leave for not being truthful about the incident on the initial report and then fired him in August 2018.
If Mr. Swartz’s appeal of his termination proves ultimately to be successful, the town would be required to award back pay to the firefighter, retroactive to August 22, 2018, the date of his termination.
Mr. Swartz subsequently filed an appeal of his termination with the civil service commission. On July 29, the commission ruled in Mr. Swartz’s favor and overturned his termination. The town filed a request for reconsideration, arguing that the commission does not have the jurisdictional authority to overturn the termination.
The commission’s ruling on August 26 denied the town’s request. It stated that the town’s motion restated the same jurisdictional arguments previously presented “which the commission carefully considered and, for the reasons stated in the decision, found to be without merit.”
“None of the ‘new’ information provided in the motion for reconsideration was unknown or ‘newly discovered’ matter,” the commission ruled. “In sum, whether the ‘facts’ or arguments presented in the motion for reconsideration are ‘new’ or reconstituted, none of them change the commission’s conclusion.”
In its ruling of July 29, the commission said it found that Mr. Swartz “had not been untruthful or intentionally misrepresented his actions about a medical call.” In its latest ruling, the commission noted that the other firefighter was allowed to write a supplement to the original report. Mr. Swartz was fired without being given the same opportunity, the commission said.
“Nothing in the evidence Bourne presented during this appeal comes close to justifying any inference that the two firefighters conspired to conceal anything, harbored any bias, or that the conduct involved here even remotely presented any issue of, or risk to, public safety,” the commission ruled.
In March 2018, Mr. Swartz filed for disability retirement through the Barnstable County Retirement Board. The civil service commission acknowledged that Mr. Swartz filed for and has been receiving regular retirement benefits as of August 24, 2018.
In October 2018, a medical panel determined that Mr. Swartz was “mentally or physically incapable of performing the essential duties of his or her job” and that his incapacity is “likely to be permanent.” He has an application for accidental disability retirement benefits pending before the Contributory Retirement Appeals Board.
Mr. Sulman said Mr. Swartz’s application to the retirement appeals board is still pending.
Bourne Town Counsel Robert S. Troy has argued that the civil service commission cannot reinstate and award back pay to Mr. Swartz when he has “a pending application before another state agency in which the employee—under oath—swears that he is permanently disabled and cannot perform the functions of the position he previously held.”
The civil service commission said its ruling does not address the merits of Mr. Swartz’s “retirement applications or the statutory requirements that govern a return to duty by a retired civil service employee.” The commission’s ruling said it is a difference between state law and civil service law.
“Even though an appellant may claim to be permanently disabled within the meaning of Massachusetts retirement law,” the ruling said, “the decision to reinstate the appellant falls well within the purview of the commission’s authority and jurisdiction under civil service law.”
Mr. Troy said it is unfortunate that the commission’s denial of the town’s motion for reconsideration “merely rehashes the flawed analysis in its original decision.”
“The commission is apparently unable to address the conundrum it has created by reinstating a public safety officer to a position that the retired employee has admitted he cannot fill,” Mr. Troy said.
State statute permits the town to appeal the commission’s decision to Barnstable Superior Court within 30 days from the date of the decision. Mr. Troy said the town’s step is dependent on a decision by the Public Employee Retirement Administration Commission “as to whether it will adopt the unanimous findings of its appointed medical panel” regarding Mr. Swartz’s status.