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‘Vindication’ for Bypassed Billerica Firefighter

December 29, 2018
Lowell Sun

BILLERICA -- The Civil Service Commission found a fire lieutenant who had some prior knowledge of sexual relationships between employees in Billerica Fire Department was unfairly passed over for a promotion, according to a Dec. 20 decision.

In the 13-page decision, the Civil Service Commission upheld Lt. Jason Smith’s appeal, which he submitted on May 8. Smith applied, but did not receive, a promotional appointment to one of two open fire captain positions.

“The vindication for Lt. Smith was a complete vindication that he was passed over for reasons that were not valid,” his attorney Joseph Sulman said. “The town manager has concocted a story in his head that was not true.”

Town Manager John Curran said he is “looking into the possibility” of appealing the Civil Service Commission decision to the Superior Court.

“I think the hearing officer missed the mark on a lot of things,” said Curran, who described the report as having missing or incorrect information.

The appeal challenges reasons described in a May letter to Smith, which notified him he would be bypassed for the promotions, despite ranking first on the eligible list of candidates.

This letter refers to a sex scandal in the Billerica Fire Department that came to light in the spring of 2017. An investigation found, over several years, a female dispatcher had engaged in sexual relationships with several male firefighters, including during work hours or on town property, according to the commission’s decision.

Four employees were placed on paid leave for about two months then ordered to work for 60 days without pay. The employees were dispatcher Christina Winitzer, firefighters Michael Ricci and Dan Barrila and then-Capt. David Forziati, who was demoted to lieutenant, the Sun has learned.

According to the decision, Smith said the dispatcher told him about her sexual relationships with these firefighters in December of 2016.

The dispatcher also introduced Smith to one of her female friends who was at Smith’s home “one winter night.” That night, the dispatcher who was nearby “called and referenced that she had too much to drink,” Smith told the commission. According to the decision, Smith said the dispatcher came over to his house and the three of them slept in separate bedrooms.

The letter bypassing Smith for a promotion referenced this evening, stating Smith “exercised poor judgment in allowing the young employee (dispatcher) over your house in the midst of the very troubling and problematic events for the Town and the Fire Department,” according to the decision.

The decision also references a section of the letter stating Smith’s “actions or lack therefore during this [dispatcher scandal] provides cause for concern about your judgment and ability to serve in this essential command role.”

Smith received a similar letter when he was bypassed for a temporary captain position in 2017, but did not appeal.

In the decision, Civil Service Commission Chairman Christopher Bowman wrote “it appears that the Town Manager has let his imagination get the best of him.”

“When Lt. Smith participated in the internal investigation, he was told by the investigator that rumors were rampant about what occurred at his home that night,” according to the decision. “It was not a counseling session. It was not what the rumor mill had conjured up. It was one friend offering another friend a place to stay one night. That is not a valid reason for bypassing Lt. Smith for promotional appointment to Fire Captain.”

In an interview with the Sun after the release of the decision, Curran said his question was not whether Smith had the dispatcher over to have sex, but why he would have the dispatcher over at the “height of the investigation.”

Curran said Smith previously told him he invited the dispatcher to provide counseling, though he did not refer her to the Employee Assistance Program. According to the decision, Smith did not have any responsibility to refer her to the program.

The decision said Smith spoke to investigators regarding his conversations with the dispatchers and testified at a disciplinary hearing for an involved employee.

However, he did not share this information upon learning it “in part, to avoid spreading rumors, as he was not certain that these encounters actually occurred,” according to the decision. The document went on to say the department did not have any policy prohibiting romantic or sexual relationships between employees until June 2017.

“The town has not shown Lt. Smith’s decision not to share this information with others was an ‘inadequate response’ or a failure of leadership,” according to the document.

Curran said Smith was reluctant to share what the dispatcher said about her relationships.

“There’s accountability and knowing the difference between the right thing to do and the wrong thing to do,” he said.

According to testimony from Curran, which was described in the decision, many superior officers of all ranks had “knowledge that multiple firefighters had been, or were actively having sex with the female dispatcher.”

A different employee, identified as “MB” in the document, was promoted to captain. Like Smith, this employee learned about the alleged misconduct, but did not report it up the chain of command, according to the decision.

The document said “MB,” who was a union official, and the union president were notified of the issue in September 2016 when one of the dispatcher’s former sexual partners sent her a draft Craigslist advertisement meant to embarrass her.

“Even if Lt. Smith was obligated to report this information, the Town acknowledges that it promoted a lower-ranked candidate who was also aware of the sexual encounters and failed to properly report them,” the decision said.

Curran said “MB” did actually report this issue to the department’s deputy chief, but the Civil Service Commission would not know this, because the investigation’s report did not include this information, as it had a different focus.

The commission’s decision described Curran’s request to Smith to accept responsibility for his “inadequate response” as “bizarre.”

“The decision here by the Town Manager appears to be driven, in part, by the Town Manager’s misplaced expectation that Lt. Smith should personally apologize to him from his (Lt. Smith)’s alleged lack of judgment,” according to the commission’s decision. “This strikes me as some type of personal loyalty test that has no place in the civil service system.”

According to the commission’s decision, the town may not appoint anyone below Smith to captain, unless certain requirements are met, including allowing Smith time to appeal any decision to bypass him.

If the town bypasses him for another promotion, it must provide Smith a reason that was unknown to the town before the most recent bypass, according to the decision.

The civil service system is used by many police and fire departments to “guard against political considerations, favoritism and bias in governmental hiring and promotion,” the decision said.

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