By Angeljean Chiaramida STAFF WRITER
Newburyport Daily News
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SALISBURY — An arbitrator found that the town failed to substantiate accusations lodged against fired officer Mark Thomas, and was “predisposed to firing him” based on his close ties with ex-chief David L’Esperance and “the jealousy of (Thomas) by other town police officers.”
Details of a 36-page decision, released this week, state that Salisbury officials failed to find evidence to back up a slew of allegations that led to Thomas’ firing earlier this year.
Among the findings by arbitrator Ricard Boulanger were:
On the charge of Thomas studying for the February, 2008 bar exam while on duty, Boulanger found that the evidence presented was not conclusive, nor that of his taking a cruiser to Boston to study.
“While (Thomas) had permission from Chief L’Esperance to study for the Bar Examination while on-duty either at the SPA (New England) office or in Boston, he testified that he did not do so,” Boulanger wrote in his decision. “The evidence establishes that no one witnessed (Thomas) studying for the Bar Examination while in duty.”
Boulanger goes on to say that although Salisbury Detective Steve Sforza found keys to the SPS New England office in Thomas’s desk at the station, it did not prove Thomas used the office. The keys were given to Thomas by L’Esperance for use as a quite place to study for the exam.
In addition, Boulanger said, there was no physical evidence on allegations made against Thomas by his fellow officers that he drove a Salisbury cruiser to Boston to study. Corroborating evidence such as travel logs, gas receipts, or even Fast Pass records, were not available to prove Thomas used the town property for his own private use, Boulanger wrote.
Neither did Boulanger accept as proof the evidence gathered by Sforza, which the town claimed indicated Thomas must have been studying on duty because his work productivity decreased during the time in question. Boulanger said the decrease in productivity could have resulted in the scores of days Thomas took off from work to study prior to the exam. Sforza was asked to undertake the analysis by retired Salem police chief Robert St. Pierre, whom Harrington hired to conduct the investigations into L’Esperance and Thomas.
“Detective Sforza’s calculations are not sufficiently reliable to conclude that (Thomas) studied for the February, 2008 Bar Examination on town time,” Boulanger wrote. “Chief St. Pierre agreed with the union’s contention that (Thomas’) 50 leave days and compensatory time, combined with his 5 (days on) -2 (days off) schedule left him with 70 days of non-work time to study for the Bar Examination. Therefore, the evidence of (Thomas’) leave and compensatory time utilization indicates that he used a significant portion if not all of his own leave to study for the Bar Examination. . . . based on the preponderance of the evidence, it is more than likely than not that (Thomas) did not study for the February, 2008 Bar Examination while on duty.”
As to the accusation Thomas lied on the application for admittance to the FBI Academy, Boulanger again referred to the preponderance of evidence not proving guilt.
The town claimed Thomas conspired to falsify his position in the department, as well as neglected to report past disciplinary action against him on the application to take a course at the FBI Academy in Quantico, Virginia.
According to Boulanger’s ruling, L’Esperance testified he filled out and filed the application for the Academy and its corresponding letters to get Thomas into the highly regarded law enforcement course. In the application, L’Esperance wrote that Thomas was “chief of detectives,” an official position Harrington claimed does not exist in the town’s hierarchy.
However, L’Esperance testified the position chief of detectives was his own creation, an unofficial title given to Thomas because he was assigned by L’Esperance the most difficult cases to investigate. It was also a way to credit the detective and enhance morale, he testified.
Further, although the town claimed that Thomas conspired with L’Esperance to falsify the application, Boulanger said the evidence did not support the charge.
As to not admitting of the application to prior discipline by a former chief, Boulanger again found problems with the town’s claims. According to the town, Thomas was fired by then chief Edwin Oliveira about 22 years ago for a past infraction. However, the town’s attorney at the time discovered that there were “procedural flaws” in Thomas’ firing. Following that, Thomas was reinstated.
Thomas didn’t own up to any disciplinary action against him, he testified, because he believe it had become a moot issue.
“(Thomas) credibly testified that Chief Streeter informed him that he had never been terminated or suspended because neither Chief Oliveira nor he (Streeter) sent notices of termination or suspension to the Civil Service Commission,” Boulanger wrote. “According to Thomas, Chief Streeter indicated that per records in the State’s Human Resources Division, there was no discipline in (Thomas’) work history.”
St. Pierre reported that Streeter denied making such a statement. Streeter, issued a summons to testify at the hearing, never appeared.
However, Boulanger wrote, any and all past disciplinary actions should have been included in Thomas’ Human Resources Division records, but there was no such notice therein. Therefore Boulanger ruled there wasn’t sufficient evidence to up hold the town’s claims and firing.