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Counsel tells Mass. town to reject FD’s petition for independence

Rockport firefighters, who threatened to quit en masse last month due to conflicts with leadership, petitioned to be emancipated from town oversight last week

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Rockport’s town counsel has advised the town board to reject the Rockport Fire Department’s petition to be emancipated from town oversight and serve under an independent, elected committee.

Photo/Rockport Fire Department

Michael Cronin
Gloucester Daily Times, Mass.

ROCKPORT, Mass. — The town’s counsel has recommended selectmen take no action on a community-helmed petition seeking to emancipate the Rockport Fire Department from town oversight, calling it “invalid” as written.

Attorney Michael Walsh of Walsh & Walsh LLP in Lynnfield submitted a petition at Town Hall on Dec. 7 asking selectmen to call a special Town Meeting that would vote on establishing the “Independent Rockport Fire Department.” The petition said the new department would serve under a three-person prudential committee elected by the public. The committee would be responsible for selecting a fire chief to oversee all administration, personnel, and equipment; manage the budget; and enforce policies.

This Monday evening, Town Counsel Darren Klein responded directly to Walsh via email. Town Administrator Mitch Vieria forwarded the email to the Gloucester Daily Times to serve as the town’s official comments regarding the petition.

“Please be advised that I will be recommending to the town administrator and Board of Selectmen that it take no action regarding said petition,” the email stated, “since the petition is not properly in order, unenforceable and flawed for several reasons.”

Selectmen had not taken up the petition as of Tuesday afternoon.

Walsh represents the Back Beach Neighbors Committee, which is suing the town of Rockport for allegedly facilitating illegal activity perpetrated by SCUBA divers at Back Beach. Walsh told the Times it was the Back Beach Neighbors Committee that informed him of firefighters threat to walk off the job unless there changes in the leadership and management of Rockport Fire Department. Firefighters agreed to stay on when selectmen agreed to conduct an audit of the department.

“My clients are long-time residents of Rockport and they want the best public safety services the town can have,” said Walsh. “They asked me what the community could do to show the firefighters they had all their support. I drafted up the petition and several agreed to sign.”

Claim, counterclaim

Walsh built his petition on Massachusetts General Laws Chapter 48, from Section 60 onward. Of note, section 61 states: “Before a district is constituted and organized, a petition shall be presented to the town at a meeting, stating the limits of the proposed district, and requesting the town to raise taxes for the establishment and maintenance of a sufficient fire department for the reasonable protection of the inhabitants and property within said limits. If the town refuses or neglects so to do, the inhabitants of the proposed district may organize it and establish a fire department therein.”

Klein’s email to Walsh points out the town of Rockport already has a fire district and a department to cover it.

“Establishing a Fire District pursuant to (state law) can only be accomplished when a Fire Department does not already exist that covers the geographic area proposed for the ‘Fire District,’” it reads. “A Special Act has been enacted by the Massachusetts Legislature, which serves as the Town Charter, and which codifies the establishment of the town’s Fire Department with fire engineers appointed by the Board of Selectmen. ... This Special Legislation cannot be usurped or superseded by a petition filed under (Chapter 48).”

Walsh disputed this claim to the Times. He argued a “sufficient fire department” as per law is defined by “the inhabitants of the proposed district.” Walsh said he’s prepared argue this in court, if need be.

Walsh’s petition stipulates the newly independent Rockport Fire Department would also oversee the town’s ambulance and EMS services and the Rockport Forest Fire Division.

“This is not authorized by the statutory scheme for the establishment of Fire Districts under (Chapter 48), since the authority of fire districts established under this statutory scheme is limited to fighting fires...” argued Klein. “Similarly, in a Fire District established under (Chapter 48), certain functions are not within the purview of the fire chief, such as the issuance of open air burning permits, and separate fire warden(s) must be appointed.”

For these reasons, Klein states the petition “does not trigger any obligation to hold a ‘meeting’ for purposes of establishing the Fire District.”

Crux of the matter

After receiving Klein’s email, Walsh said he’ll seek a justice of the peace to initiate the special Town Meeting instead. As written in Chapter 48, “If the selectmen refuse or neglect to give notice of such meeting, a justice of the peace may do so.”

In an open letter addressed to the public about the petition, Walsh states Fire Chief Jim Doyle’s ongoing administrative leave is the crux behind the push to establish an independent Rockport Fire Department.

“This conflict, still unresolved, has left (a) mark in our community,” it reads. “You can see evidence of it driving (throughout) town with little signs reading ‘Support the Volunteer Rockport Fire Department’ sprouting up like weeds. ... The firefighters express a simple desire for Chief Doyle to return to command. That should be good enough for us.”

Doyle has been on administrative leave from the department since Nov. 10, the day after Fire Department members sent a letter to selectmen demanding the resignation of Emergency Services Director Mark Schmink and Assistant Fire Chief Steven Abell Jr. and threatened to walk out. Firefighters agreed to stay when the town agreed to conducts an audit of the department. Assistant Fire Chief Kirk Keating has since been filling in for Doyle.

Town officials say Doyle’s leave is due to a “personnel matter” and not at all related the ongoing controversy at department. Both the town and Liam O’Connell, a lawyer advising Doyle, declined to discuss the details surrounding this “personnel matter.” O’Connell, Rockport firefighters, and some members of the public still believe Doyle’s leave was retribution for the firefighters’ letter.

Since the initial fallout, selectmen announced it will hire a third-party auditor to review the department and hopefully better its leadership. Walsh, in his letter to the public, argued this process would “take months before a final answer is reached” and that “the firefighters need support now.”

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(c)2020 the Gloucester Daily Times (Gloucester, Mass.)

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