By Bruno Matarazzo
MIDDLETON — Sheriff Frank Cousins defended his department's handling and subsequent cost of the 2007 firing of two top union officials — more than $200,000 — after an arbitrator ruled Monday both should get their jobs back.
The arbitrator, Boston attorney James Litton, ruled the Essex County Sheriff's Department took too long to fire union president Jerry Enos and union treasurer and webmaster K. Ricky Thompson for allowing racially derogatory remarks about Cousins and his staff on the union's online message board.
"We did that (fire Enos and Thompson) based on two independent investigations. That's the proper way to handle something at this level," Cousins said. "When something's under investigation, there's a process that has to be followed."
The remark that started the move to fire Enos and Thompson was a 2005 online comment that James Earl Ray, the man convicted of assassinating civil rights leader Martin Luther King Jr., could take care of the union's problems.
That comment prompted the department to ask the district attorney's office to investigate if there were any crimes committed. The yearlong investigation netted charges against a jail guard, Scott Thompson, who was later fired and convicted on criminal threatening charges.
Cousins, a Newburyport resident who is black, also filed a complaint with the state's Commission Against Discrimination, which took two years to find probable cause against the union, the Essex County Correctional Officers Association, specifically Enos, Thompson and two unnamed online commentators.
Less than two months after the commission's finding of probable cause, the sheriff's department fired Enos and Thompson.
However, the arbitrator ruled the long delay deprived Enos and Thompson "of their right to be disciplined in a timely manner."
As the arbitrator's decision moves to Superior Court for the appeal, the legal bills will continue to mount.
Cousins used his personal attorney to represent him during the DA's investigation and through the ongoing state discrimination investigation. A pretrial conference is scheduled for April.
Cousins said he paid his attorney with his own money as well as campaign funds.
Tax dollars went toward the two-year arbitration process.
Cousins said the cost so far is slightly more than $200,000 to attorney Arthur Murphy of Murphy Hesse Toomey & Lehane. The department also had to pay $17,242 to the arbitrator, their share of the $34,484 bill.
The costs could mount if the sheriff department's appeal fails, since Enos and Thompson will be entitled to back wages — as well as their jobs back.
Democratic candidate for Essex County sheriff Damian Anketell criticized Cousins' handling of the firing of Enos and Thompson and the costs to taxpayers.
"If Cousins handled the situation better, it would never have come out the way that it did," Anketell said.
Anketell, who worked at the sheriff's department until 2005, was around when the online message board was operational.
"(The message board) caused more problems, a lot of problems," Anketell said.
But if Anketell felt the sheriff should have acted sooner, Cousins asked why he didn't voice his opinion sooner.
"Why didn't he speak up and say, 'This is wrong'? That's the question that should be asked when he was a public employee working here," Cousins said. "This is the perfect example of hateful behavior. It should be appealed, and it will be appealed."
Cousins said three separate courts upheld the firings of other employees who wrote racially offensive e-mails and online comments.
In 1999, former jail guard Kevin O'Leary was fired from his position as a lieutenant for forwarding an e-mail that had a picture of Cousins' face and shoulders superimposed with the cross-hairs of a rifle and the words: "pull the trigger on the (racial epithet)." The U.S. District Court in Boston and the First Circuit Court of Appeals upheld the firing.
In 2006, the sheriff's department fired Joseph Curran for writing; "you identify Hitler as the sheriff, the Jews as the correctional officers, the Nazi generals as the department's deputies and captains, and another group, including yourself as ones who may attack the Nazis." Cousins said a judge in Haverhill District Court upheld the firing.
"They were very clear, this type of behavior will not and cannot be tolerated in the work force — not just for myself but all employees that work here. There cannot be racial hatred on that Web site," Cousins said.
Along with the employees, 55 percent of the inmates at the Middleton jail are minority, Cousins said.
The union argued the firings were not for just cause and that the department cannot discipline them for simply maintaining an online message board. Also, Enos and Thompson have a First Amendment right because the Web site and its message board is off-duty speech "made in the context of lawful union activity as distinguished from being part of their official job duties."
While Enos and Thompson authored certain postings on the message board, there is no record of any postings by either one that could be "independently disciplined."
