Wait Continues for Court Ruling on Former Police Chief Candidate
FITCHBURG -- The city awaits the result of its appeal of a federal court ruling that awarded a former candidate for police chief $1.5 million in damages and an additional $800,000 in legal fees and other costs.
Former candidate for police chief Scott Heagney sued the city of Fitchburg after former Mayor Lisa Wong did not recommend him for police chief in 2014.
Wong pulled his application for chief after city officials discovered he did not disclose a 1988 assault-and-battery case that ended in his acquittal.
A U.S. District Court jury in ruled in Heagney’s favor in late 2017, finding that his nomination was unlawfully withdrawn and that Wong made “defamatory” statements to the Worcester Telegram & Gazette, which reported that Wong said Heagney had not been “forthcoming” about his past criminal charges and acquittals.
City Solicitor Vincent Pusateri said Friday the city appealed the U.S. District Court ruling on the grounds that the evidence raised at trial did not satisfy the legal definition of “defamation.”
Arguing before a panel of three judges in the U.S. Court of Appeals for the First Circuit on July 24, an attorney for the city Leonard Kesten said U.S. District Court Judge Timothy Hillman misapplied a legal doctrine that protects an employer who unlawfully fires an employee but later discovers the employee had engaged in misconduct that justifies his or her termination.
“The after-acquired evidence issue infected this entire proceeding from the beginning,” Kesten told the panel.
Wong publicized her initial selection of Heagney as police chief before a background check on him was completed, said Kesten.
While the background check was being performed, an anonymous letter was sent to local newspapers and the city that alleged Heagney “had lots of problems” in his past that warranted inquiry.
Heagney, argued Kesten, had told city officials during the hiring process that he had “no issues that would be of concern to you in my past, ever.”
After the anonymous letter was sent, BadgeQuest, a consulting agency that helps municipalities find qualified applicants for police administrators, investigated some of the claims within, and Wong ultimately dropped Heagney’s application for chief.
Kesten argued that the city is not liable for damages, in part because Heagney was unable to prove that the information of his past criminal cases and acquittal would not eventually come to light, and that he would have been hired despite it.
“There is no libaility until you show that you would have gotten the job, in this case, he wouldn’t (have),” he said.
One of Heagney’s attorneys, Nicholas Carter, told the judges the jury was correct to award damages because Wong violated state law when she pulled his application “for not disclosing a prior criminal charge.”
Carter argued that Wong’s decision not to hire Heagney would have been lawful if she did so solely on the basis of his prior assault-and-battery case.
But instead, Carter said Wong chose not to hire Heagney because he “had not been forthcoming” about the charge, arguing that he was under no obligation to disclose the criminal charges he had been acquitted of.
“You’re not dishonest for not disclosing it, because the law protects you,” he said, adding that the Wong’s reported statement that Heagney was not “forthcoming” about the charge was defamatory as she implied the the candidate was dishonest.
“You’re not dishonest for not disclosing (the charges), because the law protects you,” said Carter.
Carter reasserted that his client was harmed by the actions of Wong and the city, saying the candidate was a finalist for three police chief in three communities and received no offers after “the defamation.”
The city was ordered to place the $2.3 million it owes Heagney into a bond until the appellate judges rule hand down a decision, according to court documents.