NORTH ATTLEBORO — If a North Attleboro firefighter had not been charged with a second case of domestic assault just a month after the one that got him fired in the first place, he might have been returning to his job this week.
Commissioners from the state Civil Service Commission rejected a wrongful termination suit from ex-firefighter Glenn Lavery after considering the appeal for nearly two years.
Lavery, 49, was fired from the North Attleboro Fire Department in December 2015 after allegations he attempted to choke his pregnant girlfriend and knee her in the stomach during a November 2015 altercation in his North Attleboro apartment.
The case was later dismissed after Lavery and his girlfriend, who police said was a co-aggressor in the dispute, refused to testify against one another.
But it was another charge, just one month later, that leaves the 25-year fire veteran without a job.
Lavery was again arrested in January 2016 on charges of assault and battery after an altercation with his ex-wife in her home and later admitted to sufficient facts on the case.
Commissioner Paul Stein said interviews and evidence from the first assault did not leave him with enough to uphold the termination — but the second charge tipped the decision the other way.
“Had Mr. Lavery not been involved in another incident of alleged domestic abuse, for which he admitted to sufficient facts to warrant a finding of guilty on charges of assault and battery, my assessment would have been limited to the evidence presented through the NAPD to the Commission on the Nov. 21, 2015 incident,” Stein wrote, adding that interviews and an investigation by the police department did not indicate who or what caused red marks on the neck and chest area of the girlfriend following the fight.
“I would have been inclined to conclude that North Attleboro did not prove by a preponderance of evidence that Mr. Lavery had used a degree of force that would have left any ‘red’ marks on Ms. Doe’s neck during their struggle.”
But Stein wrote that several officer’s testimonies that the red marks did exist, combined with Lavery’s admission to a domestic violence incident “barely one month” later, “tips the calculus on this very close call.”
Stein said although the town and prosecutors were unable to prove criminal assault by Lavery, testimony by the man showed it was “more likely than not likely” he caused the red marks through some degree of force, whether or not it was intentional or by self defense. Lavery also sustained injuries in the altercation.
Stein ruled that the misconduct established that Lavery was involved in an act of domestic violence, which is considered “conduct unbecoming” of a firefighter in town. He upheld the termination on these grounds.
But Stein rejected an argument from the town that a restraining order placed against Lavery would have limited his ability to serve as a firefighter if his platoon got called to certain areas of town. Stein said Lavery could have appealed the courts for a modification of the restraining order.
And, the commissioner criticized the speed with which Lavery was charged and dismissed by the town.
The town faces another appeal from police Sgt. David Gould, who was fired in January 2017 after allegations he beat two Plainville police officers, one of whom was his girlfriend. The investigation and civil proceedings into that incident were much more thorough.