Lawsuit over Mass. town's fire department leadership moves ahead
10 Rockport taxpayers say town funds can't be used for public safety stipends
Gloucester Daily Times, Mass.
ROCKPORT, Mass. — Lawyers for the town and the 10 taxpayers suing the town over leadership of the Fire Department got their say in court Tuesday afternoon in regards to Rockport's motion, filed in March, have the suit dismissed outright.
Judge C. William Barrett listened to the arguments but has yet to make a decision whether to dismiss any or all the charges levied by the taxpayers against the town.
At the start of the year, 11 Rockport taxpayers — now 10, as one dropped out this summer — filed suit in an attempt to block the use of town funds for expenses they believed to be illegal. These town expenditures include Town Administrator Mitch Vieria's salary, Assistant Police Chief Mark Schmink's stipend for his role as emergency service director overseeing all Rockport's public safety departments, an upcoming audit of the Rockport Fire Department, and fees for Attorney Dinamary Horvath's 2019 investigation into misconduct allegations against former Fire Chief James Doyle.
Tuesday's hearing was held via Zoom from Essex County Superior Court in Lawrence.
Town Counsel Deborah Ecker of K.P. Law told the court that all the payments in question have already been made through legal means. Money to create the emergency service director position and its stipend were approved by Town Meeting. Money used to pay for the Doyle misconduct investigation came from the town's legal expenditure fund, also granted at Town Meeting.
A line item in the human resource department's budget for fiscal year 2020 asked for $201,000 for its "labor reserve" fund. That was approved by the 2019 Town Meeting as well. Only $48,349 was allocated to the fund in fiscal 2019.
Vieira's salary, meanwhile, is contractually obligated, though voters had no issues with approving his yearly wage year after year.
Attorney Liam O'Connell, who represents the plaintiffs, argued that it didn't matter that spending on these items was approved at Town Meeting as they were illegal expenditures. He argued that Vieira was not chosen by Town Meeting to serve as public safety commissioner, and that the will of the Board of Fire Engineers, can not be usurped by an outside party such as an emergency service director. The board is responsible for overseeing the Rockport Fire Department's four companies and personnel, preparing its budgets, approving invoices, payrolls, training, fire reports, record keeping, and equipment purchases and maintenance, according to the town's bylaws.
Selectmen are allowed to hire outside counsel for independent investigations, but O'Connell claimed Horvath was hired by Vieira himself. In addition, he argued the upcoming audit was "to investigate how to jive the emergency service director with the department."
Selectmen in Rockport are responsible for hiring town employees. The town claimed in its March motion for dismissal that it was the selectmen, not Vieira, who ultimately hired Horvath to investigate Doyle in 2019, and who named Schmink emergency service director that same year. The Rockport emergency service director, according to the job's description, was originally set up to oversee the Fire, Harbormaster, Forest Fire and Animal Control departments and the town's ambulance response team.
Vieira's contract states that he is the town's public safety commissioner. The contract was negotiated with and signed off by selectmen in 2018.
In January, Selectmen selected Municipal Resource Inc. of Meredith, New Hampshire, to audit the Rockport Fire Department's operation. The scope of the audit is limited to "maintaining and expanding an on-call fire department and addressing operational (challenges) including the recruitment and retention of on-call personnel to structure a path leading to a successful future for the Rockport Fire Department," according to the firm. As part of the audit, MRI will make a recommendation on whether an emergency service director is a viable option for the town.
A contract has yet to be signed with MRI for the audit. It is unclear how much the town will pay for the firm's services.
The hearing ended around 2:45 p.m. with Barrett taking the motion to dismiss under advisement.
Barrett said depending on his ruling, he will decide whether to hold another hearing regarding an amended complaint filed by O'Connell in June. The new complaint adds two counts regarding open meeting law and public records request violations to the lawsuit.
O'Connell previously accused the town of failing to follow through with his public records requests and illegally changing the date and time of Doyle's termination meeting. The town has denied any wrongdoing in either case and made a motion to dismiss the resubmitted complaint two weeks ago.
(c)2021 the Gloucester Daily Times (Gloucester, Mass.)