pagliuca-leeman proposed decision

8/22/2019 Pagliuca-Leeman Proposed Decision

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COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. CIVIL SERVICE COMMISSIONOne Ashburton Place: Room 503

Boston, MA 02108

(617) 727-2293

CHRISTOPHER PAGLIUCA,

WILLIAM LEEMAN

Appellants

v. D-12-346 (Pagliuca)D-12-342 (Leeman)

CITY OF HAVERHILL,

Respondent

Appellant Christopher Pagliucas Attorney: Joseph A. Padolsky, Esq.

Louison, Costello, Condon & Pfaff, LLP

101 Summer Street, 4th

Floor

Boston, MA 02110

Appellant William Leemans Attorney: Stephen C. Pfaff, Esq.

Louison, Costello, Condon & Pfaff, LLP101 Summer Street, 4

thFloor

Boston, MA 02110

Respondents Attorney: Rachel Munoz, Esq.Morgan, Brown & Joy, LLP

200 State Street

Boston, MA 02109

Commissioner: Christopher C. Bowman

PROPOSED DECISION

Pursuant to the provisions of G.L. c. 31, 43, the Appellant, Christopher Pagliuca

(hereinafter Pagliuca), is appealing the decision of the City of Haverhill (hereinafter City or

Appointing Authority) to suspend him for five (5) days for an incident that occurred on March

30, 2012 and involved alleged violations of Haverhill Police Department Rules and Regulations

Rule 130 (Departmental Reports), Rule 111 (unsatisfactory performance) (Judgment) and


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Cannon of Police Ethics Article X. The Appellant, William Leeman (hereinafter Leeman) is

appealing the decision of the City to suspend him for ten (10) days for the same alleged

violations as Pagliuca.

The appeals were timely filed with the Civil Service Commission (hereinafter

Commission) on December 17, 2012. A full hearing on the consolidated appeals was held on

March 20, 2013 and March 21, 2013 at the offices of the Commission. As no written notice was

received from either party, the hearing was declared private. Two (2) compact discs were made

of the hearing. All witnesses were sequestered. Both parties submitted post-hearing briefs in the

form of proposed decisions.

FINDINGS OF FACT:

Based upon the twenty-five (25) documents entered into evidence and the testimony of the

following witnesses:

For the Appointing Authority:

Sergeant Daniel Cena, West Newbury Police Department; Chief Alan DeNaro, Haverhill Police Department; Officer Adam White, Merrimac Police Department Medic Erin Fortin, Trinity EMS Inc. Medic Carl Rizzo, Trinity EMS Inc. Sergeant Harry Miller, Haverhill Police Department Deputy Chief Donald ThompsonFor the Appellant:

Lieutenant Lee Mimms, Haverhill Fire Department Officer Christopher Pagliuca, Appellant Lieutenant William Leeman, Appellant Charles Noyes, Retired Lieutenant Colonel, Massachusetts State PoliceI make the following findings of facts:

1. Christopher Pagliuca is a patrolman with the Haverhill Police Department. He has beenso employed for the past eight years. Prior to being employed with the Haverhill Police


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Department he was a member of the Massachusetts National Guard from which he has

been honorably discharged. Officer Pagliuca has no prior discipline. In fact, in his short

tenure with the Haverhill Police Department he has received a commendation for the

performance of his duties as a police officer. (Testimony of Pagliuca; Exhibits 16 and

17).

2. Williams Leeman is a Lieutenant with the Haverhill Police Department. He has no priordiscipline. In his tenure with the Haverhill Police Department he has received a

commendation for the performance of his duties as a police officer. (Testimony of

Leeman; Exhibit 17).

THE NOYES INCIDENT

3. The following was unclear on the night of the incident, but it is information which wenow know occurred on the evening of March 30, 2012. At approximately 10:30pm, a

2005 white Cadillac Escalade registered to Charles Noyes was travelling through West

Newbury, Massachusetts. Charles Noyes was driving that vehicle. He was traveling on

Main Street around the area of Baileys Lane when his cell phone, located on the front

passenger seat, began to ring. As he reached across to grab his phone he lost control of

the vehicle and it struck a telephone pole in West Newbury on Main Street after Training

Field Road but before Baileys Lane. The vehicle caused the pole to split and hang into

the roadway. The vehicle continued on to strike a traffic signal on the side of the

roadway a short distance after the location of the telephone pole. The vehicle continued

travelling on Main Street in the direction of Bridge Street and took a right turn onto

Bridge Street in West Newbury. The vehicle then continued traveling on Bridge Street,

over the Rocks River Bridgewhich is located in West Newbury, Merrimac, and


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Haverhilluntil finally coming to a stop on the shoulder of East Main Street in

Haverhill. (Testimony of Noyes; Testimony of Cena; Exhibits 6 & 23).

4. Sergeant Daniel A. Cena (Cena) was the Night Shift Supervisor for the West NewburyPolice Department

1on the night of the incident. (Testimony of Cena).

5. He was in a single manned cruiser near the Town of Groveland line. He was dispatchedto what was described as motor vehicle accident in the westbound travel lane of Route

113 at the intersection of Baileys Lane near the Training Field in West Newbury.

(Testimony of Cena).

6.

Cena arrived at the scene of the motor vehicle accident and did not see any vehicle in the

area. He observed that a telephone pole was snapped and hanging over the roadway.

There was also a cast iron traffic signal that had been snapped from its base

approximately fifteen feet from the snapped telephone pole. (Testimony of Cena).

7. Officer Royster Johnson, also from West Newbury, arrived at the location of the accident.(Testimony of Cena).

8. Cena exited his cruiser and spoke to the residents of the area. A one, Ms. Dunlap2reported that someone had driven by and told her that a smashed up vehicle was traveling

in the direction of the Rock River Bridge. (Testimony of Cena).

9. Shortly thereafter, the West Newbury Fire Department then arrived on scene and Cenaproceeded to attempt to locate the vehicle involved in the accident. (Testimony of Cena).

10.When Cena returned to his cruiser he noticed a fluid trail starting at the scene of theaccident which he began to follow. The fluid trail led Cena to Bridge Street in West

1 West Newbury Police Department is not a Civil Service Town.2 Ms. Dunlap was not interviewed by Haverhill in their investigation into this incident, nor was she called as a witness before thisCommission.


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Newbury, two streets up from the scene. The fluid trail continued to one mile down the

road to the Rocks River Bridge. (Testimony of Cena).

11.At the bridge there was a pooling of automotive fluid which led Cena to conclude that thevehicle had stopped at the stop sign before the bridge. Cena then requested that West

Newbury dispatch notify Merrimac and Haverhill and he proceeded over the bridge.

(Testimony of Cena).

12.As soon as he got over the bridge, as he described in his testimony before thisCommission, the vehicle that appeared to have been involved in the accident in West

Newbury was in eyeshot pulled offto the right shoulder of the roadas furthest to the

right as it possibly could have. The vehicle was a white Cadillac Escalade. There were

no lights on. (Testimony of Cena).

13.Cena pulled his cruiser to the rear of the Cadillac and radioed West Newbury dispatchthat he was at the location of the vehicle. (Testimony of Cena).

14.Officer Adam White of the Merrimac Police Department (White) was dispatched toRocks River Bridge area in Merrimac. He came to the end of River Road in Merrimac,

which is in eye-shot of the end of the Rocks River Bridge, and as he was approaching the

bridge he noticed Cenas police vehicle exiting the bridge and traveling towards the

Cadillac. White stated that he followed Cena to the location of the Cadillac and the two

of them parked in tandem behind the vehicle in the order of their arrival. White radioed

Merrimac dispatch to advise them that he was on location and then exited his vehicle to

speak with Cena. (Testimony of White).

15.It was at this point that Cenas testimony began to diverge from other accounts on scene.I did not find Cena to be a credible witness. Cena stated that the first thing that occurred


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when he arrived on scene was that he approached the driver side door. He stated he

knocked on the door which was opened by the operator. He then spoke to the person in

the drivers seat. Cena testified that the person initially stated that he was fine. Cena

stated that he then asked the operator if he was ok because he was involved in a serious

accident in West Newbury, Cena says that the operator did not acknowledge him. Cena

testified that he asked the operator if he was the registered owner of the vehicle and the

operator answered affirmatively. Cena then asked for his license, which he turned over to

Cena. In handing his license to Cena, the operator flashed his State Police badge. Cena

stated that after taking the operators license, Cena walked back to his cruiser, passed by

White and told him that he believed the operator was intoxicated. Cena then used his

cruiser radio to call dispatch to log it. (Testimony of Cena).

16.White recalls the initial interaction between Cena and the operatorwho we now knowas Charles Noyesslightly differently than Cena in a few material respects. White

recalls that after he and Cena arrived on scene they had a brief conversation before Cena

proceeded to the drivers side door in which Cena stated this must have been the vehicle

involved in the accident in West Newbury. White stayed to the rear of the vehicle at the

driver side bumper during Cenas interaction with the operator. White recalls that when

Cena approached the drivers side door he had a conversation with the operator through

the window of the vehicle, not the door. White recalls that Cena then gave the operator a

description of the accident and damage in West Newbury and asked him why he did not

stop. White heard the operator say that he was not involved in any accident. White then

heard Cena ask the operator to do a field sobriety test (FST) which the operator refused

stating that he was not doing anything. It was at this time that Cena instructed the


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operator to exit the vehicle. The operator opened the door, exited the vehicle and handed

his license to Cena. Cena noticed the badge in his wallet and asked him if he was still on

the job to which the operator told Cena that he was retired State Police. (Testimony of

White).

17.In his testimony before this Commission, Cena initially denied that he engaged in anypolice actions during the stop, stating that he did not have authority in Haverhill. In fact,

he stated that if this were an OUI stop in his town that he would typically ask the person

to exit the vehicle to perform a FST. He specifically testified that he did not do that here

because he had no authority to act as a police officer. I find this portion of Cenas

testimony lacks credibility. (Testimony of Cena).

18.Cena was very clearly under the assumption that the operator of the vehicle had engagedin the crime of operating under the influence of alcohol (OUI). In order for a police

officer to have probable cause to arrest an individual for OUI they must have probable

cause to establish that the individual is (1) operating a vehicle (2) under the influence of

alcohol (3) on a public roadway. (Testimony of Cena).

19.At this point, Cena, and perhaps White, had established that Charles Noyes (Noyes)was the operator of the vehicle. Cena testified that he had probable cause for operation

on a public way based on the observations of the damage at the accident scene in West

Newbury, his observations of the fluid trail, his observations of Noyes in the drivers seat

of the vehicle when he arrived, and the license check that he ran with West Newbury

dispatch. Cena testified that the only element that he had remaining was intoxication,

which he assumed he had because he detected an odor of alcohol, slurred speech and

further stated that [Noyes] wasnt listening to [his] instructions. However, as discussed


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above, Cena claims that he did not make the arrest because he did not do a FST and did

not have authorization to act as a police officer. (Testimony of Cena).

20.At this point in the stop, Cena directed Noyes to the rear of the vehicle and had him sit onthe rear bumper. Cena continued questioning him. Cena asked if he had any weapons

and Noyes answered affirmatively. Cena then entered the vehicle and seizedNoyes

firearm. Cena was asked a second time whether he was acting as a police officer or a

private citizen, he changed his answer and stated I guess I was acting as a police

officer. (Testimony of White; Testimony of Cena).

21.In fairness to Cenas initial observations of intoxication, White also observed that Noyes

was a little unsteady on his feet and had bloodshot eyes. However, White spoke to Noyes

and did not observe slurred speech. White further stated that he did not smell any alcohol

on Noyes. (Testimony of White).

22.Both Cena and White testified before this Commission that their observations are alsoconsistent with potential injuries from a motor vehicle accident. (Testimony of Cena;

Testimony of White).

23.At that point in the stop, a wrecker truckfrom Coadys Towing arrived on scene. Whiteindicated that the arrival of the wrecker caused some confusion about who called the

wrecker as neither White nor Cena had called for the truck. (Testimony of White).

24.Shortly thereafter, a fire truck from the Haverhill Fire Department and an ambulancefrom Trinity EMS arrived on scene with their lights activated. (Testimony of White).

25.Lee Mimms is a Lieutenant for the Haverhill Fire Department. He testified before thisCommission and I found his testimony to be credible. He was on the Haverhill Fire truck

that responded to the scene of the incident. He recalls responding to the scene with lights


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and sirens. He remembers seeing the vehicle with heavy front end damage and walking

around the vehicle looking for leaking fluids. He recalls seeing police officers on scene

and seeing Noyes standing behind the vehicle. (Testimony of Mimms).

26.It appears that the fire truck responded to the scene and performed their sweep of thevehicle prior to the ambulances arrival. Mimms remembers askingNoyes if he was ok

and Noyes responding in the affirmative. Mimms did not smell any alcohol on Noyes

and describes that he got within two to three feet of Noyes. (Testimony of Mimms).

27.The two medics on scene from Trinity EMS were Erin Fortin and Carl Rizzo. I foundtheir testimony to be credible. Rizzo, the driver of the ambulance, recalls arriving on

scene to an SUV with front end damage. He recalls seeing a West Newbury Officer, a

Merrimac Officer and the engine company. Fortin explained that when she arrived on

scene she exited the ambulance proceeded to Noyes who was at the back of the vehicle.

(Testimony of Fortin; Testimony of Rizzo).

28.Fortin then explained that she recalls observing Noyes in a relaxed melancholy state. Shestated that he was relaxed and had initially refused care. (Testimony of Fortin).

29.It appears that Pagliuca arrived at some point after Trinity EMS but before the medicshad completed their initial evaluation.

3(Testimony of Pagliuca; Testimony of Rizzo).

30.Pagliuca testified before this Commission. I find his testimony to be credible. Pagliucarecalls working on the night of the incident. He recalls getting a call from dispatch

regarding a car accident in the area of River Road. Dispatch further reported that

somebody was standing outside the car on a cell phone. (Testimony of Pagliuca).

3 Cena is the only witness to this proceeding who has Pagliuca arriving before Trinity EMS arrived. Cena claims that afterPagliuca arrived on scene and Trinity arrived on scene, he told them that he believed Noyes was intoxicated and then proceededup the hill to direct traffic for the remainder of his time on scene. (Testimony of Cena). I find this portion of Cenas testimonylacks credibility. White testified that he performed traffic control for the majority of his time on scene and that Cena never did

traffic control further stating that if he did it was for a very short period. (Testimony of White).


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31.Officer Pagliuca proceeded to the area of River Road4 from Haverhill traveling west toeast. His first observation was emergency lights flashing. He recalls pulling up to the

scene and speaking to Cena. He recalls telling Cena that dispatch told him that the

vehicle left the scene to which Cena responded in the negative. Pagliuca testified that at

this early point he was operating under the assumption that the operator was drunk given

the description from dispatch and his initial conversation with Cena. He further testified

that he asked Cena if the guy was drunk and Cena responded legless. Cena then told

Pagliuca that the guy is a retired trooper. He hit a couple of poles in West Newbury.

Cena then handed Pagliuca Noyes license and told him he seized Noyes firearm and

was holding it in his cruiser. Pagliuca was then instructed by Cena to park his cruiser and

told by Cena that he would update him. (Testimony of Pagliuca).

32.Pagliuca proceeded to park his cruiser. Given the multi-jurisdictional issues and the factthat Cena appeared to be in control of the scene, Pagliuca called dispatch over the radio

and requested his street supervisor.5

Dispatch sent Sergeant Harry Miller to the scene.6

(Testimony of Pagliuca).

4 East Broadway in Haverhill traveling west to east becomes East Main Street in Haverhill. Traveling west to east on East Main

Street leads to the Rocks River Bridge. Once in West Newbury the roadway becomes Bridge Street. River Road ispredominantly located in Merrimac and runs parallel to the Merrimack River until coming to an end just over the Haverhillborder just before the Rocks River Bridge.

5 Multiple policies and procedures of the Haverhill Police Department have been admitted in evidence. Specifically, theHaverhill Police Department has a mutual aid policy which governs officer authority when an officer is outside the jurisdiction of

their city or town. Haverhill does not have a mutual aid agreement with Merrimac or West Newbury. However, the mutual aidpolicy states, in part, the following:

ASSISTANCE FROM MSP and LOCAL DEPARTMENTS. It shall be the responsibility of the Shift Commander(OIC) to make the initial decision regarding the need for outside assistance form the Mass. State Police and/orother local departments during some emergency situations. However, the Operations Commander should becontacted for the purpose of advising that the action was taken and to be briefed on the circumstances. Examplesof situations that might require this action includes, but are not limited to: disbursement of large crowds or

gatherings; coll ision scenes; searches for a suspect or suspects following a crime; and searches for missing orwanted persons. Shift Commanders shall assume overall command of those situations in which they haveobtained outside assistance. (Emphasis added).

The Haverhill Police Department Policy on Collection and Preservation of Evidence has also been admitted. The section of theCollection and Preservation of Evidence policy entitled Initial Response to a Crime/Incident Scene states the following:


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33.Pagliuca got out of his cruiser and proceeded to the area where the medics were initiallyevaluating Noyes at the back of the Cadillac. (Testimony of Pagliuca).

34.Fortin testified that she asked Noyes if he had anything to drink and he stated that he hadtwo drinks that night. Pagliuca testified that he along with Cena and White heard this

conversation. Fortin proceeded to ask Noyes for consent to perform vitals and other care

questions which he refused. Fortin was then going to have him sign refusal of care

forms, but Pagliuca asked her to standby and wait for his supervisor to arrive so that he

could first evaluate the scene. (Testimony of Fortin; Testimony of Pagliuca).

35.Sergeant Harry Miller of the Haverhill Police Department has been working with the

Haverhill Police Officer since 1997. He was made a full time police officer in 2002 and

promoted to Sergeant in 2010. He was demoted to police officer as a result of a

settlement agreement that he reached with the City in the face of a recommendation for

termination for Millers involvement in the instant matter and for his involvement in a

previous incident in which it is alleged that he changed his police report for leaving the

scene to a simple accident report for a multi-car accident involving a State Trooper by the

1. The first unit to arrive will be responsible for identifying, securing, and protecting the crime/incident scene aswell as conducting the preliminary investigation in accordance with the department policy on preliminary

investigations. Any contamination of the scene can greatly reduce the effectiveness of the department insuccessfully processing the scene.

a. The officer(s) shall ensure that the scene remains undisturbed by refusing access to unnecessarypersonnel;

b. No one should be allowed to pick up or place anything in the crime/incident scene area; andc. Items of evidence shall not be handled unless health or safety factors require the immediate security

or removal of an item.2. Upon the arrival of a supervisor, (s)he will assume command of the scene. (S)he will ensure that sufficient

personnel are available to secure and protect the scene, deny access to unauthorized persons, and preserveevidence.

3. The supervisor will evaluate the need for special units for search or investigative purposes, and notify theofficer-in-charge of the station.

6Sergeant Harry Millers disciplinary history has come into light during the course of the investigation of this incident. On thenight of the incident, both Leeman and Pagliuca were unaware of Millers previous issues in similar situations. In fact, neither

Leeman nor Pagliuca learned of Millers history until the investigation of this incident had been concluded. The details ofMillers disciplinary history are discussed more fully in the body of the findings.


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name of Paul Regan (Regan incident). Chief Alan DeNaro testified that the City of

Haverhill did not learn of the Regan incident, which occurred in 2005, until the

investigation into the instant matter. He testified that they learned of the Regan incident

due to a post on the discussion thread to an article that had been written about the Noyes

incident. Miller received a ten-day suspension and demotion from Sergeant to Patrolman

as a result of a settlement agreement reached between he and the City of Haverhill. The

Chief had requested that the City terminate Sergeant Miller. (Testimony of Miller;

Testimony of DeNaro).

36.When Miller arrived on scene he was approached by Officer Pagliuca. Miller asked

Pagliuca what he had on scene and Pagliuca told him that when he arrived on scene he

observed a West Newbury Police Officer and a Merrimac Police Officer conducting an

investigation with Noyes, a retired State Trooper, and the smashed up vehicle on the side

of the road. (Testimony of Miller).

37.Pagliuca testified that he was under the impression that Haverhill was only on scene toassist West Newbury. Although the two did not discuss their understanding specifically,

Miller testified that he believed that Pagliuca was under the impression that it was Cenas

crime scene and investigation. Miller testified that he was under the same impression as

Pagliuca until later on in the investigation. (Testimony of Miller)

38.Miller then asked Pagliuca: is he intoxicated? to which Pagliuca responded that Cenasaid he was in an accident in West Newbury and that he had followed him into Haverhill.

Pagliuca said that Cena told him that when he arrived on scene Noyes came out of the

vehicle and tinned him stating he was a retired state trooper. Pagliuca further stated


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that Cena told him that he could smell booze. Pagliuca stated that Cena and White had

propped him up at the back of the car and began an investigation. (Testimony of Miller).

39.Miller then said to Pagliuca: what do you think? to which Pagliuca responded thatNoyes cannot stand up, his eyes are glassy, and I think he is intoxicated. Miller then

went to speak to Cena. (Testimony of Miller).

40.Cena told Miller that he responded to the scene of a motor vehicle accident in his town.Cena said that he took out a telephone pole and light pole and continued driving. Cena

said that he followed the fluid trail to the bridge, noticed the Cadillac and came into

Haverhill. Cena told Miller that he went to the drivers side door at which time Noyes

exited the vehicle and fell into his arms. Noyes then tinned Cena, at which point Cena

propped Noyes up at the rear of the vehicle. Cena did not tell Miller that he attempted to

conduct a FST. (Testimony of Miller).

41.Miller and Pagliuca then went to the rear of the Cadillac. Miller observed Noyes leaningagainst the vehicle. He further observed that there were two medics there with Noyes.

Miller then asked Noyes if he had been drinking to which he responded no. Miller then

told Noyes that Cena told him that Noyes was in an accident in West Newbury to which

Noyes responded what accident? (Tesitmony of Miller).

42.Miller then went back to Cena and said to him so are you charging him with leaving thescene and OUI. Cena responded No, I am charging him with leaving the scene but not

OUI. Miller then said why arent you charging him with OUI if you are charging with

leaving the scene to which Cena responded my Chief and theDA will get mad at me.

(Testimony of Miller).


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43.It was at this point that Miller formed the belief that he, not Cena, was in command at thescene. (Testimony of Miller).

44.Miller then called Lieutenant William Leeman on his cell phone and told him what washappening on scene. Leeman was the most senior officer on duty that night, working in

the HPD station. Miller informed Leeman of the fact that Cena was going to charge

Noyes with leaving the scene but not OUI. Leeman told Miller to ask Cena to call his

officer-in-charge to confirm that course of action, which Miller did. Cena responded, I

am the OIC. (Testimony of Miller; Testimony of Leeman).

45.Miller testified that he called his Lieutenant because of the discipline that he received as a

result of a previous incident involving Haverhill Police Detective Glenn Fogarty

(Fogarty incident), which is discussed in greater detail below. Miller stated that when

he received discipline for the Fogarty incident the Chief said to him specifically that if he

finds himself in that situation again that he should call his Lieutenant. (Testimony of

Miller).

46.While Leeman did know that Miller had been disciplined, he did not know the factsbehind the discipline, and no one in the Haverhill Police Department of any rank had

informed him why Miller had been disciplined. (Testimony of Leeman).

47.While Miller was on the phone with Leeman, Pagliuca recalls waiting with Noyes by therear of the vehicle and having a conversation with him about random unrelated incidents

that have occurred in Haverhill. Pagliuca did not observe any slurred speech, but Noyes

did appear to be rambling in the sense that he continued to talk about random past events

that took place in Haverhill when Noyes was still a trooper. (Testimony of Pagliuca).


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48.Miller then recalls Noyes started speaking about the fact that they all work the same job,stating that if this was the good old days they would just let him go. Miller said to Noyes

If I get the green lightto charge you, you are getting charged. (Testimony of Miller).

49.A few moments went by and Miller then called Leeman back. Leeman, who had beenresearching caselaw to find any case that would justify charging Noyes with operating

under given the facts presented to him after the first phone call with Miller, directed

questions towards Miller regarding their observations of Noyes.7

One of the questions

was whether they could smell alcohol to which Pagliuca and Miller responded that they

could not smell alcohol. Leeman then asked Miller if the windshield was spider-webbed,

to which Miller responded in the affirmative. Leeman then asked if he could have a head

injury to which Miller responded that he did not have any visible injuries. Leeman then

asked Miller if anyone had asked Noyes if he was driving the vehicle or if there were any

keys. Miller started to ask the officers on scene if they asked Noyes if he was driving or

if they had the keys. Pagliuca responded in the negative. Cena also responded in the

negative. (Testimony of Miller)

50.Miller then got out of his cruiser, which is where Miller was while he was on the phonewith Leeman, and he approached Noyes and asked him if he was driving. Pagliuca

recalls that Noyes responded by saying where are you going with this? Noyes then

responded by saying that he was not driving. Miller asked him who was driving and

Noyes refused to answer. (Testimony of Pagliuca)..

7 At the Full Hearing of the instant matter Chief DeNaro claimed that Leeman should have either used a different Sergeant for theNoyes incident or reported to the scene himself. With regard to Leeman reporting to the scene, however, the Chief issued an

order on July 6, 2010 ordering the Shift Commander to remain inside the station unless responding to the scene of a significantincident. The July order rescinded a 2002 order which states that the Chief supports the Commanders leaving the station

particularly for serious events such as fatal accidents, major fires, and other events that would merit the attention of thecommander. (Exhibit 19 & 20). With regard to other available Sergeants, it would appear, as a matter of coincidence that the

other sergeant on duty that evening was in the process of responding to a multi-vehicle motor vehicle accident involving a personwho may have been operating under the influence. (Testimony of Leeman).


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51.Miller then directed Pagliuca to check the Cadillac for keys. Miller recalls Pagliucawalking around the vehicle and opening the passenger door looking for the keys without

success. (Testimony of Miller).

52.Pagliuca recalls doing a search of the vehicle by walking around the perimeter of thevehicle and shining his flashlight into the vehicle cabin. He does not recall finding or

seeing a set of keys. (Testimony of Pagliuca).

53.Leeman then told Miller that based on what Miller had told him and after Leemans ownresearch, he did not believe that Haverhill had enough probable cause for operation.

(Testimony of Miller).

54.Throughout the multiple telephone conversations between Miller, on scene, and Leeman,back at the station, Leeman referenced his law books to attempt to assist with the

situation on scene. Based on the information that Miller was reporting to him, he was

unable to conclude that the Haverhill officers had probable cause to arrest for the crime

of OUI on the facts that they knew on scene. (Testimony of Leeman).

55.Miller then engaged in a discussion with Cena about who was going to charge Noyes andwith what. Pagliuca was not a part of this conversation. Miller then relayed that

information to Pagliuca. It was at that point that Pagliuca realized that Noyes was not

going to be arrested. (Testimony of Pagliuca).

56.Shortly after that exchange Miller approached Noyes and suggested that he go with themedics which Noyes agreed to do. (Testimony of Pagliuca).

57.Pagliuca was then instructed by Miller to accompany Noyes to the ambulance which hedid. Pagliuca describes the accompaniment as placing his right hand on Noyes left arm


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and just walking in the direction of the ambulance. Rizzo and Fortin have the same

recollection. (Testimony of Pagliuca; Testimony of Rizzo; Testimony of Fortin).

58.It was at this point that Cena began yelling at Noyes. Cena stated that Noyes was givingthem the run-around claiming that they do not have operation and stating that there are

no keys. Cena stated that he said to Noyes are you really going to play this f*****g

game and you are lucky you made it to Haverhill because ifyou didnt youd be going

to jail right now. Cena also stated that he was almost killed by a drunk driver in a

previous incident and that his failure to take ownership was ridiculous. (Testimony of

Cena).

59.Miller then approached Cena and told him that if he was going to charge Noyes with OUIthat Miller and Pagliuca would be glad to testify. Miller further stated that he is going to

the hospital and that his blood could be subpoenaed. Cena said no, thats ok, got in his

cruiser, handed Noyes firearm to Miller, and left. (Testimony of Miller).

60.Before Pagliuca left he recalls receiving Noyes firearm from Millerto be logged. As hewas walking back to his cruiser he recalls the tow truck driver asking where the keys

were, to which Pagliuca responded that he did not know. (Testimony of Pagliuca).

61.Pagliuca then returned to the station. He went immediately to Lieutenant Leemansoffice and asked him whether he should write a report and what type of report it should

be. Pagliuca explained that there are criminal charge reports, miscellaneous reports, etc.

For example, if the report was an OUI report it would include elements of the crime

whereas a miscellaneous report only contains observations. Pagliuca testified that he was

confused as to whether or not he should write a report because no arrest was made.



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62.Lieutenant Leeman instructed Pagliuca to write a miscellaneous report, a standard reportto write when assisting other jurisdictions. Pagliuca then inquired as to what information

should be included in the report given it was a miscellaneous report. Pagliuca testified

that it was not customary for supporting officers to write a report when assisting other

jurisdictions. Consistent with this testimony, White testified that he did not write a report

at all. White testified that he just logged his activity in the CAD system as an assist on

the call. (Testimony of Pagliuca; Testimony of White).

63.Pagliuca then went to the report room and began writing the report. As he was writingthe report, Sergeant Miller came into the report room and spoke to Pagliuca but did not

provide any input. Pagliuca told Miller that Noyes was rambling on scene about having a

few drinks with dinner and coming through Newburyport to pick up eggs from a friends

house. Miller claims that this prompted him to ask Leeman if they should put in an

application for complaint for OUI. Leeman denies that this conversation ever occurred.

(Testimony of Miller; Testimony of Leeman).

64.Lieutenant Leeman also entered the room to review the report. From the time that hestarted writing the report to the time that he completed the report, there was no input from

Leeman or Miller as to the content of the report. Once the report was submitted, Pagliuca

did not make any changes to the report. Pagliuca was never ordered to supplement his

report nor did a supervisor identify or address with him any issues in his report.


65.Cena also wrote a report on the incident. His report was written five days after theincident. Further, there were a number of seemingly relevant pieces of information that

Cena omitted from his report. He indicated through testimony that he believed that


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Noyes speech was slurred, information which is not in his report. He indicated through

testimony that Noyes was not following instructions, information which is not in his

report. He indicated through testimony that Noyes was stumbling after he exited the

vehicle, information which is not in his report. He indicated through testimony that

Noyes flashed his badge, information which is not in his report. The report does not

indicate that Cena seized a firearm from Noyes vehicle. The word legless is not in

Cenas report. Cena was not disciplined for his response to this incident. (Testimony of

Cena).

DEPUTY CHIEF DONALD THOMPSONS INVESTIGATION

66.Chief Alan DeNaro has been the Police Chief of the Haverhill Police Department8 forapproximately eleven years. DeNaro testified that he learned of the Noyes incident the

morning after it had occurred and recalls specifically because he reported to the office

after responding to a multi-alarm fire in his capacity as Fire Chief. DeNaro testified that

he received calls from citizens over that weekend with complaints about the way the

Noyes incident was handled. The alleged calls were not documented in writing. Rule

125 of the Code of Ethics for the Haverhill Police Department requires that any formal

complaint against any member of the Department shall be courteously and promptly

record[ed], in writing. Rule 82.2.2 Reporting Requirements further specifically

requires that all citizen complaints must be reported in writing. (Testimony of DeNaro;

Exhibit 1; Exhibit 14).

67.Chief DeNaro claims to have a specific memory of reading Officer Pagliucas report onApril 2, 2012, the Monday following the incident. This information is puzzling because

8 Chief DeNaro is the Public Safety Commissioner for the City of Haverhill which includes the roles of Police Chief and FireChief.


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the Chief also stated that he read Cenas report and Pagliucas report at about the same

time. Cenas report was not submitted until April 4, 2012. (Testimony of DeNaro;

Exhibit 6).

68.DeNaro testified that he ordered his Deputy Chief to conduct an investigationimmediately. He testified that he ordered the investigation because some of the

collateral damage for our lack of doing our best service on this case was that the public

had lost a serious amount of confidence in this agency and our ability to police everyone

fairly and equitably, and thats something thats going to take us a long time to overcome

because there are many people, and rightfully so, who feel that if it had been them in the

same situation, they would have been arrested. DeNaro denies that he specifically

follows or responds to media coverage of the Police Department. (Testimony of

DeNaro).

69.Donald E. Thompson is Deputy Chief of the Haverhill Police Department. Thompsonstated that the Chief assigned the investigation to Thompson on the Monday following

the incident. (Testimony of Thompson).

70.Thompson was asked about the alleged complaints that prompted the investigation and hestated that the complaints that DeNaro received were not documented. He elaborated that

that type of complaint does not need to be documented pursuant to the Rules and

Regulations of the Police Department because he is receiving complaints from City Hall.

Thompson stated that if DeNaro gets a call from a city counselor that the complaint

would not be documented. Rule 125 does not have an exception to the in-writing

requirement. Further, DeNaro stated he received calls from citizens, not City Hall or a

city counselor. (Testimony of Thompson; Testimony of DeNaro; Exhibit 1).


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71.As part of Thompsons investigation, he interviewed Cena, Miller, Pagliuca, Leeman,Fortin, a Mr. Lesiczka (911 caller), White, and Rizzo. Thompson testified before this

Commission that he spoke to Mimms in passing but decided that he did not have any

relevant information and did not interview him. This fact is not noted in Thompsons

report. In this respect I find his testimony lacks credibility. Thompson specifically notes

in his report that he had conversations with the Essex County District Attorneys Office

and the Worcester County District Attorneys Office.9

His alleged discussion with

Mimms is not included in this, or any other section of his report. (Exhibit 9).

72.As noted above, DeNaro denies that he initiated an investigation into the matter in

response to the manner in which the media was covering the Noyes incident. On April 5,

2012, the Newburyport News wrote an article entitled Retired state trooper charged with

reckless driving. The article was written one day after Cenas report had been

submitted. It specifically states [w]hen contacted last night, a Haverhill police official

said Noyes was not arrested following the crash. He added there is no mention of Noyes

in the police log for that night. (Testimony of DeNaro; Exhibit 21).

73.On April 9, 2012 an editorial was published in the Eagle Tribune in which it is stated itscrystal clear that the incident and the way it was handled by Haverhill police merit much

closer scrutiny. The editorial further states West Newbury, to their credit, have

provided the bulk of the information on how this incident was handled. Now its up to

Haverhill police to explain how the investigation was handled when they took it over and

whether any special treatment was given. (Exhibit 21).

9The District Attorneys office noted that if anyone was to arrest or charge Noyes with operating under the

influence it should have been West Newbury.


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74.On April 10, 2012 the Eagle Tribune published an article entitled Haverhill police proberetired troopers crash. The article states, in part, Haverhill Deputy Chief Donald

Thompson said his department is reviewing the March 30 incident and declined to

discuss details or provide a police report until the probe is concluded. Thompson said he

could not speculate why driver Charles Noyes, 62, of Haverhill was not arrested at the

scene. Thompson said the probe would likely take a few days to complete and the police

report would likely be made available then. (Exhibit 21).

75.The first interview performed by Thompson in the Haverhill Police Departmentsinvestigation of this incident was April 10, 2012. West Newbury Sergeant Cena and

Trinity EMS Medic Erin Fortin were interviewed on April 10th

. Also of note is the fax

time stamp on the Trinity EMS Report included as an attachment to Thompsons

investigation report. The note is time-stamped 2:03pm on April 10, 2012. Thompsons

interview of Fortin occurred on April 10, 2012 at 2:17pm. The above is the first piece of

evidence indicating when the investigation in Haverhill may have begun. Neither

Thompson nor the City provided any document supporting their claim that the

investigation began prior to April 10th

. (Testimony of Thompson; Exhibit 12; Exhibit

13).

76.In addition to the fact that the City has failed to provide any evidence showing theycommenced their investigation prior to April 10, 2012, Pagliuca continued to work

multiple shifts since the date of the incident. Further, he was not placed on paid

administrative leave until April 11, 2012, which would suggest that the matter was not

under investigation until April 10th

or April 11th

. (Exhibit 11; Testimony of Pagliuca).


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77.Lieutenant Leeman was subsequently interviewed on April 11th and May 1st. OfficerPagliuca was interviewed on April 20

thand April 30

th. Sergeant Miller was interviewed

on April 23rd

and May 1st. Merrimac Officer White and Trinity EMS Medic Carl Rizzo

were interviewed on May 4th

. It appears that no investigative activity occurred in the

weeks following Rizzos May 4th

interview. (Testimony of DeNaro; Exhibits 9 & 13).

78.On May 20, 2012, the Eagle Tribune published an editorial entitled Ex-cops accidentcase leaves a stain on the system. The editorial cited the fact that Noyes criminal case

was continued without a finding for six months during which time Noyes was on

unsupervised probation. The editorial further states [t]heres one last chance for

answers about what happened the night of March 30. The editorial goes on to state that

the Haverhill police are conducting an investigation and promise answers. The editorial

closes by stating [b]ut the stain on the system cannot be scrubbed away until the many

questions surrounding this case are answered. (Exhibit 21).

79.On May 23, 2012 a report was published by the Eagle Tribune in which Noyes lawyer isquoted as commenting on Pagliucas police report which had not been publically

released by Haverhillstating that the Haverhill patrolman did not detect an odor of

alcohol or observe that Noyes was unsteady on his feet and neither did the patrolmans

street supervisor. Noyes lawyer is further quoted as stating that the doctors at the

hospital found that he was not under the influence of alcohol. (Exhibit 21).

80.That same day, Thompson purportedly sent Officer Ed Watson to check with CoadysTowing about the location of the keys. Thompson did not interview or speak with

anyone from Coadys Towing about the incident or the location of the keys despite the

fact that the wrecker was the third responder to the scene. According to Thompsons


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report, however, Watson allegedly learned that the keys to Noyes vehicle were on the

seat. There is no indication of whether the keys were on the seat the night of the incident,

whether the person who Watson spoke to went to check the vehicle at the time of the

phone call, which seat the keys were located on, etc. (Exhibit 9).

81.Pagliuca was disciplined with a five day suspension from the Chief on May 29, 2012. OnJune 1, 2012 the Haverhill Police Department notified the Eagle Tribune of the Chiefs

decision to suspend Pagliuca, Miller, and Leeman.10

The mayor further issued a written

statement noting [t]he internal investigation by the police alleges that proper and

thorough investigation was not done in this matter. (Exhibit 21).

82.In Thompsons testimony before this Commission he testified that, during his interviewwith Pagliuca, Pagliuca told him that he believed that Noyes was either going to be

arrested or summonsed. However, Pagliuca expressed to Thompson that he had concerns

regarding the operation element and the jurisdictional issues and that the keys were not a

big issue at the scene. He further stated that he was concerned as to why West Newbury

did not charge Noyes with OUI. Thompson does not mention any of the above in his

report. (Testimony of Thompson; Exhibit 9).

83.Thompson, in his testimony and in his report, did not acknowledge any of thejurisdictional issues on scene. In his testimony before this Commission, however, he

acknowledged that when Pagliuca arrived the Cadillac was just over the Haverhill line,

that Sergeant Cena from West Newbury appeared to have stopped the vehicle, that Cena

10 Personnel records are protected from public disclosure by M.G.L. c. 4, 7(26)(c). In fact, in an earlier matter between Leeman

and the City, the City took an even stricter position that not only were personnel records protected from disclosure, but so to wereinternal affairs investigative materials. Leeman was forced to bring suit to compel the production of certain materials. In

Leeman v. Cote, the court ordered the City to release internal affairs investigative materials but specifically ordered redaction ofofficer names, addresses, and disciplinary reports. 21 Mass.L.Rptr. 411 (Suffolk County, August 30, 2006). Despite this very

clear ruling, the Chief and the City immediately released not only the investigative materials to the City, but the officer names,addresses, and disciplinary reports.


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had taken Noyes license and seized his firearm, and that Cena was in the process of

questioning Noyes. Thompson admitted that Pagliuca calling the Sergeant was the right

thing to do. His admission about the correctness of calling the Sergeant is not in his


84.Thompsons conclusions in his report with respect to Pagliuca do not coincide with histestimony before this Commission. Thompson testified that once Sergeant Miller was on

scene, Miller was in command of the scene with respect to Haverhill. However,

Thompson attributes the failure to conduct a FST and failure to investigate to Miller and

Pagliuca equally. Thompson believes that Haverhill had probable cause to arrest, but his

report evaluates probable cause to arrest for OUI entirely upon the facts known to Cena

on scene which were not fully reported until April 4, 2012. (Testimony of Thompson).

85.To that end, DeNaro testified that the three elements to OUI are (1) operating, (2) underthe influence of alcohol (3) on a public roadway. DeNaro admits that no Haverhill

officer observed the vehicle in operation. He admits that no Haverhill officer observed

Noyes operate the vehicle. He admits that no Haverhill officer observed the vehicle on a

public roadway. (Testimony of DeNaro).

86.Both Thompson and DeNaro take issue with regard to what is and is not contained inPagliucas report. However, both Thompson and DeNaro appear to assume, incorrectly,

that Pagliucas report is also Miller and Leemans report. Thompsons report cites the

field reporting policy for the Haverhill Police Department where it states that all reports

will be complete and will explain exactly who did what, when, where, how and why and

that all relevant facts will be noted. Thompson correctly recognizes that Pagliucas

report is classified as a miscellaneous report but fails to discuss the significance of such


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classification. The field reporting policy very clearly differentiates between the type of

reports that officers are expected to write. For example, if an officer has made an arrest,

the arrest report is specific to the crime for which the person was arrested. In that event

the facts relevant to the report will include the facts relevant to probable cause to arrest

for the crime for which the person was arrested. This information is contained in Field

Reporting Policy 82.2.1(a); 82.2.1(b); 82.2.1(c); and 82.2.1(d). An officer is only

required to submit an arrest narrative when an arrest has been made. Thompsons report

fails to mention this detail of the Field Reporting policy and treats Pagliucas report as an

arrest narrative rather than a miscellaneous report. It appears that DeNaro has made the

same mistake. (Testimony of Thompson; Testimony of DeNaro; Exhibit 14).

87. The Field Reporting Policy further states that when a specific report form is not capableof containing the complete report or if Police Officers are requested by a Supervisor to

submit a report for whatever reason, they will use the To/From report format and close

with the phrase Respectfully Submitted:followed by the Officers rank and/or title,

printed and signed name. There is no further instruction or requirement as to the content

of miscellaneous reports. The miscellaneous report is precisely the type of report that

Leeman ordered Pagliuca to complete which Pagliuca submitted to Leeman upon its

completion. Pagliuca was never informed of issues with his report or instructed to submit

a supplemental report. (Testimony of Pagliuca; Testimony of Leeman; Exhibit 14).

88.Thompsons identified deficiencies with the report are not deficiencies attributable toPagliuca. For example, Thompson notes in his investigative report that Pagliucas report

does not indicate that there was a discussion between Haverhill and West Newbury with


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regard to charging Noyes with OUI. This was Millers discussion. Miller did not write a


89.Thompson further concludes that Pagliucas statement that he could not smell alcohol ismisleading because he did not get closer than three orfour feet from Noyes. Thompsons

conclusion is contradicted by the fact that Pagliuca escorted Noyes to the ambulance. In

fact, Thompsons investigatory report fails to discuss that White did not smell alcohol,

Rizzo did not smell alcohol, Fortin smelled a faint odor of alcohol initially when she was

approximately eight inches away from Noyess face but she could not smell alcohol when

she was with Noyes in the back of the ambulance. It appears that Thompsons report

contains only what is necessary to draw conclusions against Pagliuca and Leeman, rather

than gather a full understanding of what had occurred on scene. (Testimony of

Thompson; Exhibit 9).

90.Thompsons report also does not indicate, one way or another, whether he made anyeffort to interview Noyes. (Exhibit 9).

91.Charles Noyes testified at the full hearing of the instant matter. He testified that he is aretired state police trooper and that he worked for the state police for thirty two years. He

is currently director of public safety at Wentworth Institute. (Testimony of Noyes).

92.Noyes testified that he was involved in an accident in March of 2012. He testified thatprior to the accident he was at work at Wentworth Institute. He left work and went to

dinner at the State Street restaurant in Newburyport. He had two drinks with dinner.

(Testimony of Noyes).

93.Noyes testified that as he was driving home, his phone was on the passenger seat. Herecalls reaching across to grab his phone and hitting the curb. He has no recollection of


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what happened after that point. He stated that he believes he hit the windshield with his

head because of the spider-webbed windshield and having blood on his head and hands.

(Testimony of Noyes).

94.Noyes remembers telling the medics that he hit the windshield with his head. Heremembers telling the medics that he cut his leg with a chain-saw and it was difficult to

walk when he got out of the car. Noyes explained that he had cut his tendon three years

or so prior to the incident which made it difficult to walk after having been seated for an

extended period of time. (Testimony of Noyes).

95.Noyes remembers being in the ambulance but does not remember any of the details. He

recalls being transported to Merrimac Valley Hospital and receiving fluids for

dehydration for the flu, took x-rays, and gave him anti-nausea medication. (Testimony of

Noyes).

96.Noyes testified that from the time that he reached down to get his cell phone to the timethat he was in Merrimac Valley Hospital all that he can recall is blue lights, someone

approaching him while he was sitting in the car, and being put in the ambulance. He does

not remember having any conversation with anyone about keys, about reminiscing about

calls in Haverhill while he was a state trooper, and he does not recall refusing medical

treatment. Noyes further testified that he did not recognize Officer Pagliuca or

Lieutenant Leeman. (Testimony of Noyes).

97.None of what was learned through Noyes testimony before this Commission wasincluded in Thompsons report because Thompson did not make any effort to interview

Noyes despite the fact thatNoyes criminal matter was resolved prior to Thompson

having completed his investigation. (Exhibit 9; Exhibit 21).


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OTHER INCIDENTS OF DISCIPLINE

98.DeNaro testified regarding an incident involving an unidentified Haverhill officer whichoccurred on October 23, 2006. On that date, an unidentified Haverhill officer reported to

a multi-car accident where one driver may have been operating under the influence, failed

to properly investigate and failed to write any report on the incident. In fact, the officer

just drove the potentially intoxicated person home. DeNaro testified that the officer was

only cited for failure to properly investigate despite the fact that no report was likely

submitted regarding the accident. Although he could not recall if a report had actually

been submitted or not, he testified that it is a fair conclusion that even if a report was

submitted, the report did not include all relevant facts or the officer would not have been

cited for failure to properly investigate. The officer was cited for unsatisfactory

performance but was only given a letter of reprimand for the alleged violation. To the

best of his recollection, DeNaro does not recall any media coverage of that incident in

2006. (Testimony of DeNaro; Exhibit 22).

99.DeNaro testified that the fact that the officer was only on the job for a year distinguishesthat case from this situation. DeNaro did not discuss, however, the fact that the officer

had completed thorough training as a new hire on the subject of OUI along with the

training the officer would have received in the field. I find DeNaros testimony in this

respect to be incredulous and self-serving. If I am to accept DeNaros justification, it

would appear to suggest that it is excusable for a younger officer to drive a potentially

intoxicated driver home rather than investigate and report a potential OUI. (Testimony of

DeNaro).


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100. Chief DeNaro further testified to a separate and unrelated incident involving Millerand off duty Haverhill Police Detective Glenn Fogarty. He stated that in the Fogarty

incident, Fogarty was off duty and trailering a boat through Haverhill that came loose and

collided with parked vehicles. There was a question about whether Fogarty had been

drinking. The two responding Haverhill patrolmen on scene had information to suggest

that Fogarty had possibly been drinking, including an open container of alcohol. The two

patrolmen did not radio for assistance but called Miller on his personal cell phone and

requested his assistance. Miller did not have the officers do any FST or any further

investigation. They did not do any investigation despite the fact that there was a bottle of

beer on the side of the roadway next to the vehicle. The officers did no investigation nor

did they write a report about the incident. Sergeant Miller was suspended for five (5)

days. The officers involved in the incident were not disciplined. (Testimony of DeNaro).

101. Chief DeNaro claims that the Fogarty incident was completely different than theinstant, Noyes incident. He claims that the fact that no officer said Fogarty was legless

or that Fogarty could not stand. He claims that the incident was different because there

was no police officer following a trail of breadcrumbs to the side of the road. I find

DeNaros explanations to be less than credible and, once again, self-serving. Contrary to

the Noyes incident at issue in the instant matter, everything of relevance in the Fogarty

incident happened in Haverhill. Unlike the potential jurisdictional issues involved in the

Noyes incident, there were none in the Fogarty incident. DeNaro testified that he does

not believe there was any news coverage of the Fogarty incident.11

(Testimony of

DeNaro).

11 A January 2, 2013 article in the Eagle Tribune indicates that they did not become privy to the Fogarty incident until theinvestigation of the Noyes incident.


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CONCLUSION

G.L. c. 31, 43, provides:

If the commission by a preponderance of the evidence determines that there was justcause for an action taken against such person it shall affirm the action of the appointing

authority, otherwise it shall reverse such action and the person concerned shall be

returned to his position without loss of compensation or other rights; provided, however,if the employee by a preponderance of evidence, establishes that said action was based

upon harmful error in the application of the appointing authoritys procedure, an error of

law, or upon any factor or conduct on the part of the employee not reasonably related to

the fitness of the employee to perform in his position, said action shall not be sustained,

and the person shall be returned to his position without loss of compensation or otherrights. The commission may also modify any penalty imposed by the appointing

authority.

An action is "justified" if it is "done upon adequate reasons sufficiently supported by credible

evidence, when weighed by an unprejudiced mind; guided by common sense and by correct rules

of law." Commissioners of Civil Service v. Mun. Ct. of Boston, 359 Mass. 211, 214, 268 N.E.2d

346 (1971); Cambridge v. Civil Service Commn, 43 Mass.App.Ct. 300, 304, 682 N.E.2d 923,

rev.den., 426 Mass. 1102, 687 N.E.2d 642 (1997); Selectmen of Wakefield v. Judge of First Dist.

Ct., 262 Mass. 477, 482, 160 N.E. 427 (1928). The Commission determines justification for

discipline by inquiring, "whether the employee has been guilty of substantial misconduct which

adversely affects the public interest by impairing the efficiency of public service." School

Comm. v. Civil Service Commn, 43 Mass. App. Ct. 486, 488, 684 N.E.2d 620, rev.den., 426

Mass. 1104 (1997); Murray v. Second Dist. Ct., 389 Mass. 508, 514, 451 N.E.2d 408 (1983)

The Appointing Authority's burden of proof by a preponderance of the evidence is satisfied

"if it is made to appear more likely or probable in the sense that actual belief in its truth, derived


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from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that

may still linger there." Tucker v. Pearlstein, 334 Mass. 33, 35-36, 133 N.E.2d 489 (1956).

The Commission is required to conduct a de novo hearing for the purpose of finding the

facts anew. Falmouth v. Civil Service Commn, 447 Mass. 814, 823 (2006) and cases cited.

The role of the Commission is to determine "whether the appointing authority has sustained its

burden of proving that there was reasonable justification for the action taken by the appointing

authority." Cambridge v. Civil Service Commn, 43 Mass.App.Ct. 300, 304 rev.den., 426 Mass.

1102 (1997). See also Leominster v. Stratton, 58 Mass. App. Ct. 726, 728, rev.den., 440 Mass.

1108, 799 N.E.2d 594 (2003); Police Dept of Boston v. Collins, 48 Mass.App.Ct. 411, rev.den.,

McIsaac v. Civil Service Commn, 38 Mass App.Ct. 473, 477 (1995); Watertown v. Arria, 16

Mass.App.Ct. 331, rev.den., 390 Mass. 1102 (1983).

The commissionstaskis not to be accomplished on a wholly blank slate. After making its

de novo findings of fact . . . the commission does not act without regard to the previous decision

of the [appointing authority], but rather decides whether there was reasonable justification for

the action taken by the appointing authority in the circumstances found by the commission to

have existed when the appointing authority made its decision, which may include an adverse

inference against a complainant who fails to testify at the hearing before the appointing

authority. Falmouth v. Civil Service Commn, 447 Mass. 814, 823 (2006). See Watertown v.

Arria, 16 Mass. App. Ct. 331, 334, rev.den., 390 Mass. 1102, 453 (1983) and cases cited.

In the instant appeal, for all of the reasons cited in my findings, I base my conclusion

primarily on the credible testimony of the Appellants, Christopher Pagliuca and William

Leeman, as well as the corroborating testimony of Merrimac Police Officer Adam White,

Haverhill Fire Lieutenant Lee Mimms, Trinity EMS Medics Erin Fortin and Carl Rizzo, and


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retired State Police Lieutenant Colonel Charles Noyes. It is the function of the hearing officer to

determine the credibility of the testimony presented before him. See Embers of Salisbury, Inc.

v. Alcoholic Beverages Control Commn, 401 Mass. 526, 529 (1988); Doherty v. Retirement Bd.

of Medford, 425 Mass. 130, 141 (1997). See also Covell v. Dept of Social Services, 439 Mass.

766, 787 (2003); (In cases where live witnesses giving different versions do testify at an agency

hearing, a decision relying on an assessment of their relative credibility cannot be made by

someone who was not present at the hearing); Connor v. Connor, 77 A. 2d. 697 (1951) (the

opportunity to observe the demeanor and appearance of witnesses becomes the touchstone of

credibility).

As indicated in my findings above, the following was unclear on the night of the incident, but

it is information which we now know occurred on the evening of March 30, 2012. At

approximately 10:30pm, a 2005 white Cadillac Escalade registered to Charles Noyes was

travelling through West Newbury, Massachusetts. Charles Noyes was driving that vehicle. He

was traveling on Main Street around the area of Baileys Lane when his cell phone, located on the

front passenger seat, began to ring. As he reached across to grab his phone he lost control of the

vehicle and it struck a telephone pole in West Newbury on Main Street after Training Field Road

but before Baileys Lane. The vehicle caused the pole to split and hang into the roadway. The

vehicle continued on to strike a traffic signal on the side of the roadway a short distance after the

location of the telephone pole. The vehicle continued travelling on Main Street in the direction

of Bridge Street and took a right turn onto Bridge Street in West Newbury. The vehicle then

continued traveling on Bridge Street, over the Rocks River Bridgewhich is located in West

Newbury, Merrimac, and Haverhilluntil finally coming to a stop on the shoulder of East Main

Street in Haverhill.


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Sergeant Daniel Cena from West Newbury responded to the accident scene in West Newbury

and made observations and spoke to witnesses. He then tracked the fluid trail across the Rock

River Bridge and radioed to neighboring Merrimac and Haverhill for assistance. As he

approached the end of the Rock River Bridge he noticed Noyes vehicle pulled to the side of the

roadway at its final resting place on the shoulder of East Main Street just over the Haverhill line.

Officer White from Merrimac made the same observation and followed Sergeant Cena from the

end of the bridge to the location of Noyes vehicle.

Sergeant Cena then began a police investigation. He continued to observe the fluid trail, he

observed the damage to the vehicle, and he approached the drivers side window to speak to the

operator. Sergeant Cena knocked on the window and the operator rolled the window down.

After confirming that the operator was okay, Sergeant Cena asked the operator for his license

and registration. At the same time, Sergeant Cena made observations about the operators

perceived level of intoxication. After making such observations he asked the operator to conduct

a field sobriety test which the operator refused. After receiving Noyes license and registration

Cena asked him to exit the vehicle and moved him to the back bumper. Cena continued to make

observations about Noyes perceived level of intoxication. Around the same time, Cena noticed

certain materials in the door compartments which led him to believe there may be a firearm in

the vehicle. Cena questioned Noyes on the firearm which Noyes was licensed to carry and

subsequently seized the firearm from inside the vehicle.

At this point in time, it is clear that Cena had probable cause to believe that Noyes had

committed the crime of operating under the influence. Cena himself testified that he had

probable cause for operation on a public roadway due to his observations of the accident scene,

his observations of corresponding damage to the vehicle, his observations of the fluid trail, and


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his observations of Noyes in the drivers seat of the vehicle when he arrived on scene. Cena

testified that the only element remaining for him to establish was intoxication which he believed

he had established through the above observations. He had established each of the essential

elements prior to the arrival of Officer Pagliuca or any other Haverhill officer or employee. He

claims he did not make the arrest because he did not have authority to do so, but if he did not

believe that he had authority to make the arrest then he would have also believed that he did not

have authority to act as a police officer. It appears quite clearly that he held no such belief.

Next to arrive on scene was Haverhill Fire. Lieutenant Lee Mimms conducted a sweep of the

vehicle for safety purposes and spoke briefly to Noyes who was resting at the back bumper of the

vehicle. Mimms did not smell an odor of alcohol or otherwise make observations consistent with

intoxication. Trinity EMS was next to arrive with Rizzo driving and Fortin in the passenger seat.

When they arrived Fortin exited the ambulance while Rizzo parked. Fortin went over to Noyes

and approached him to within eight inches during her initial evaluation. She smelled a faint odor

of alcohol at that point, but could not smell any odor of alcohol at any point thereafter. Rizzo

approached and made observations as well, he did not smell any odor of alcohol.

It was at this point that Officer Pagliuca first arrived on scene. While he was still in his

cruiser he spoke to Cena. Pagliuca asked what Cena had and Cena responded that he had the

vehicle that left the scene of the accident in West Newbury. Pagliuca asked if the person was

intoxicated and Cena responded legless. Cena then instructed Pagliuca to park his cruiser so

that he could fill him in on the details. Pagliuca proceeded to park his cruiser and use his radio

to call for a Sergeant to report to the scene. Pagliuca exited his cruiser and joined Cena, White,

Noyes, Fortin, and Rizzo at the bumper of Noyes vehicle. Around this time, Fortin and Rizzo

reported that Noyes was refusing treatment and were in the process of retrieving the refusal of


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treatment forms. Pagliuca, having called for a Sergeant, asked the medics to wait for his

Sergeant to arrive so that he may assess the scene.

A short time later Sergeant Miller arrived on scene. Miller spoke to Cena who repeated that

he believed Noyes to be intoxicated. Miller then asked Cena what he is going to charge Noyes

with and Cena stated that he was going to charge him with reckless operation and leaving the

scene, but not operating under the influence. Puzzled, Miller inquired as to why he would charge

him with two crimes related to operation of the vehicle but not operating under the influence.

This discussion is important because this is the first time that any officer from Haverhill knew

that Cena was not going to arrest Noyes. At this point in time, it is beyond dispute that if the

scene is Haverhills scene, Miller, not Pagliuca, is the commanding officer in control of the

scene. In fact, Chief DeNaro and Deputy Chief Thompson both agree that Pagliuca was correct

to have called a Sergeant and that once the Sergeant was on scene it was his scene.

Not having made observations of the accident scene in West Newbury, of the fluid trail, of

Noyes in the vehicle, or of the vehicle operating on a public roadway, Miller was forced to

determine whether he had sufficient probable cause to make an arrest for operating under the

influence. Given the jurisdictional and other complications on scene, he called Lieutenant

Leeman for counsel. Over the course of multiple telephone conversations it was determined that

the officers did not have sufficient probable cause for the elements of operation on a public

roadway. On that basis, a decision was made not to arrest Noyes. This was not Pagliucas

decision. Notwithstanding the decision not to arrest, Miller approached Cena and explained that

although Haverhill does not have sufificent probable cause to arrest for operating under the

influence, West Newbury did appear to have sufficient probable cause. Miller further spoke to

Noyes and convinced him to receive treatment and to be transported to the hospital. As such,


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Miller explained that if Cena summonsed Noyes blood alcohol count at the hospital and charged

him with operating under the influence that both he and Pagliuca would testify should the need

arise.

Once the scene had cleared and Pagliuca had returned to the station, he reported immediately

to Lieutenant Leeman. Pagliuca was given Noyes firearm to be logged and he inquired as to

whether he should write a report on the incident. Given that no arrest was made, no report was

necessary, except as to log the firearm. Leeman told Pagliuca that he should write a

miscellaneous report. Confused, Pagliuca inquired as to what a miscellaneous report should

contain. Leeman told him to write what he knew and provided examples. That is precisely what

Pagliuca did. DeNaro and Thompson take issue with the report because it does not contain facts

that go to each of the elements of operating under the influence. It is important to note that the

report is not an arrest report for which each of the elements must appear in order to sustain the

charges for which the arrest was made. Moreover, Thompson stated that he believes the

statements in the report are truthful. Where there was no clear obligation to report in the first

place, it appears that Pagliuca is being held to a standard beyond that which he was instructed to

do. That is, his report is being analyzed as an arrest report when he was instructed to complete a

miscellaneous report. Finally, to this point, if DeNaro or any other supervising officer had

reviewed Pagliucas report and believed there to be missing information, they could have and

should have instructed him to submit a supplemental report. At no point after Pagliuca submitted

his report was he given any indication that he had done anything wrong or that he omitted

material information.

I find that the Appellant Christopher Pagliuca responded appropriately to the scene. By

making this finding, I do not suggest that the incident could not have been handled differently or


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that Miller handled his duties appropriately. However, it appears that Pagliuca reported to a

scene involving complex jurisdictional and other issues and appropriately radioed for a

supervisor. He then went directly to his Lieutenant to determine what further steps he should

take including whether or not he should have written a report. There were two experienced

police Sergeants on scene, one from West Newbury and one from Haverhill. Whether or not

they made the correct decisions and the impetus therefrom should rest solely on them.

I further find that the actions of Lt Leeman were appropriate as well. First, he could not

leave the station due to the order from the Chief ordering Shift Commanders to stay in the station

unless responding to a significant accident. This was not a significant accident but rather a

routine traffic accident. Further, Leemans other assigned sergeant was at another motor vehicle

accident.

I find that Leeman attempted to find any case to assist him with a possible OUI charge

against Noyes when he diligently researched caselaw but could not find anything that would

substantiate such a charge.

Finally, I credit his testimony at the end of the evening when he spoke to Miller and

Pagliuca, and told them to write down everything they saw.

Even if I were to determine that it was appropriate to discipline either or both of the

Appellants, the Commission must determine if the City was justified in the level of discipline

imposed, which, in this case, was a five-day suspension for Christopher Pagliuca and a ten-day

suspension for Lieutenant Leeman.

The Commission is guided by the principle of uniformity and the equitable treatment of

similarly situated individuals [both within and across different appointing authorities] as well

as the underlying purpose of the civil service system to guard against political considerations,


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favoritism and bias in governmental employment decisions. Falmouth v. Civil Service

Commn, 447 Mass. 814, 823 (2006) and cases cited. Even if there are past instances where

other employees received more lenient sanctions for similar misconduct, however, the

Commission is not charged with a duty to fine-tune employees suspensions to ensure perfect

uniformity. See Boston Police Dept v. Collins, 48 Mass. App. Ct. 408, 412 (2000).

The power accorded the commission to modify penalties must not be confused with the

power to impose penalties ab initio, which is a power accorded the appointing authority.

Falmouth v. Civil Service Commn, 61 Mass. App. Ct. 796, 800 (2004) quoting Police Commr

v. Civil Service Commn, 39 Mass.App.Ct. 594, 600 (1996). Unless the Commissions findings

of fact differ significantly from those reported by the appointing authority or interpret the

relevant law in a substantially different way, the commission is not free to substitute its

judgment for that of the appointing authority, and cannot modify a penalty on the basis of

essentially similar fact finding without an adequate explanation E.g., Falmouth v. Civil Service

Commn, 447 Mass. 814, 823 (2006).

There are two very clear reasons that lead me to conclude that Pagliuca was treated

differently than other similarly situated Haverhill officers. First, there is the incident in 2006

involving the unidentified officer who reported to the scene of a multi-vehicle accident involving

two citizens in which one of the operators was potentially intoxicated. Not only did the officer

not investigate the incident, but the officer drove the operator home without reporting the

incident. There is no justification, whether it be lack of experience or otherwise, which would

lead a reasonable police officer to believe that it is acceptable practice to fail to investigate a

potential operating under the influence without calling for the assistance of a sergeant, drive the

person home, and then fail to report the incident altogether. That incident, unlike the Noyes


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incident, did not receive any media attention.12

That officer received a letter of reprimand and

retraining.

Next, there is the Fogarty incident. In the Fogarty incident, the two officers reported to an

accident scene in Haverhill, observed an off duty Haverhill police officer and observed indicia of

intoxication. They did not radio for a Sergeant to report but instead used a private cell phone to

contact Sergeant Miller so as to keep their conversation off the recorded line. Sergeant Miller

reported to the scene and instead of investigating the scene and making an arrest he failed to

investigate or report. The two officers did not conduct any investigation, nor did they write any

reports on the incident. That incident, unlike the Noyes incident, did not receive any media

attention and was not publically disclosed until the investigation of the instant matter. The two

officers were not disciplined at all because they appropriately called their Sergeant to the scene

and subordinated themselves to his control. Sergeant Miller, however, was disciplined in the

form of a five day suspension for failure to investigate and report.

Contrasting the above incidents with the instant matter it becomes clear that the Chief and the

City were motivated by the media attention and blame that Haverhill was receiving as a result of

the Noyes incident. It appears that the investigation began because of the media scrutiny and

demand for answers. The investigation dragged on for over a month and a half and concluded

the day after a published article that once again stated that Haverhill still had not released any

information or given any answers. The officers were notified of the decision to discipline on

May 29, 2012 and only two days later, the City released the entire un-redacted investigative file

as well as protected personnel information. The Citys release of protected information is only

further evidence of their underlying motivation. TheLeeman v. Cote matter between some of the

12 Chief DeNaro testified that he could not recall reading anything in the paper about this incident, but that if he did he wouldhave a specific memory of doing so.


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very same parties to the instant matter makes clear that the City was well aware of the fact that

officer names, addresses, and disciplinary reports are protected from public disclosure. As a

means of deflecting any negative media attention away from the Chief and the City in general, it

is abundantly clear that the City disciplined its officers for the purpose of responding to the

media scrutiny. The Citys motivation in the instant matter has led to a faulty investigation,

disregard for comparative discipline, disregard for officer privacy, and undue public

admonishment to Officer Christopher Pagliuca and Lieutenant William Leeman.

For all of the above reasons, the Appellants appeal under Docket No. D-12-346 and D-12-

342 is herebyallowed.

Civil Service Commission

________________________________

Christopher C. Bowman, Chairman

By vote of the Civil Service Commission (Bowman, Chairman; Henderson, Marquis and Stein,

Commissioners [TaylorAbsent]) on May 14, 2009.

A true record. Attest:

___________________Commissioner

Either party may file a motion for reconsideration within ten days of the receipt of a Commissionorder or decision. Under the pertinent provisions of the Code of Mass. Regulations, 801 CMR

1.01(7)(l), the motion must identify a clerical or mechanical error in the decision or a significant

factor the Agency or the Presiding Officer may have overlooked in deciding the case. A motion

for reconsideration shall be deemed a motion for rehearing in accordance with G.L. c. 30A, 14(1) for the purpose of tolling the time for appeal.

Under the provisions of G.L c. 31, 44, any party aggrieved by a final decision or order of the

Commission may initiate proceedings for judicial review under G.L. c. 30A, 14 in the superiorcourt within thirty (30) days after receipt of such order or decision. Commencement of such

proceeding shall not, unless specifically ordered by the court, operate as a stay of the

Commissions order or decision.


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Notice:

Joseph A. Padolsky, Esq. (for Appellant)Stephen C. Pfaff, Esq. (for Appellant)

Rachel Munoz, Esq. (for Appointing Authority)

pagliuca-leeman proposed decision

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