City Must Reinstate Employee, Commission Says

"A city of Attleboro public works employee who was fired last year following a drunk driving arrest could get his job back. In a 3-1 decision, the state Civil Service Commission determined employee William O'Connell should have received a 90-day suspension rather than being fired. The city will appeal the decision.

The commission's opinion was issued late last week,  the commission was correct when it determined last year that two fired Attleboro Redevelopment Authority employees needed to be reinstated. The ARA board will decide whether to take that case to the Massachusetts Appeals Court.

Attleboro Personnel Director Jan Silverman wrote in an email to Attleboro Patch that the city would appeal the O'Connell decision. That would bring the case before a superior court judge. Silverman recommended Patch contact Kevin Feeley, who would be handling the case. He did not immediately return a message left Monday evening. Roger Ferris, attorney for O'Connell, could not be reached for comment.

A resident of Seekonk, O'Connell was arrested in February 2011 while off-duty following a car crash in Attleboro. Police said his blood alcohol level was .24, three times the legal limit. His regular and commercial drivers licenses were suspended. O'Connell's duties, which included operating a snowplow and sander, required a commercial license, or CDL. He was initially suspended and later fired by the city because he no longer had a valid CDL.

Commissioner Paul M. Stein wrote in the opinion that O'Connell's firing was not justified because three other Attleboro workers who had been charged with drunk driving received less-severe penalties. He rejected the city's argument about O'Connell's lack of a CDL as a justification for his firing.

"To be clear, it is not unreasonable for Attleboro to require a CDL as a condition of Mr. O'Connell's employment," Stein wrote. "While Mr. O'Connell did not possess a CDL at the time of his termination hearing, Attleboro had no reasonable basis to believe that Mr. O'Connell could not get his CDL reinstated or would be without a CDL on a long-term basis."

O'Connell's CDL was reinstated in May 2011, Stein wrote. This was less than a month after Mayor Kevin Dumas had affirmed a city hearing officer's recommendation for O'Connell's firing.

The city had offered O'Connell a chance to keep his job in early March if he would sign a so-called Last Chance Agreement, which would have allowed him to return to work once his CDL was reinstated if he agreed not to drink alcohol and be subjected to random testing for alcohol. O'Connell rejected the offer.

Commission Chair Christopher Bowman noted in his dissent opinion that two of the three Attleboro employees whose punishments were compared to O'Connell's had accepted similar agreements.

"These facts do not show disparate treatment [for O'Connell]," Bowman wrote. "Rather, they show employees committing similar offenses being treated in a similar manner. Moreover, they show a city meeting its fiduciary responsibility to ensure that its fleet of trucks are driven in a safe and responsible manner."

Commissioner Ellaina McDowell, who sided with the commission majority, wanted to go in a different direction than Bowman. She wrote that the suspension length should be shorter.

"I think that a 90-day penalty is too harsh and is not consistent with the principles of progressive discipline," McDowell wrote. "For this reason, I believe a suspension of no more than thirty 30 days is justified."

The decision does not specify that O'Connell should receive back pay for the period he has not been working minus a 90-day suspension.