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Decision

Decision  Hovasse, Timothy v. Town of Burlington 5/28/26

Date: 05/28/2026
Organization: Civil Service Commission
Docket Number: D-25-206
  • Appearance for Appellant: Timothy Hovasse
  • Appearance for Respondent: Leo Peloquin, Esq.
  • Hearing Officer: Christopher C. Bowman

The Commission overturned the suspension of a Burlington firefighter as the Town was unable to show that the Appellant was untruthful to his surgeon or the Fire Chief while out on injured leave.

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Decision

CSC Law Clerk Jack Moses assisted with the review and editing of this decision. 

On September 5, 2025, the Appellant, Timothy Hovasse (Appellant), a firefighter in the Town of Burlington (Town)’s Fire Department (BFD), filed an appeal with the Civil Service Commission (Commission), contesting the decision of the Town to suspend him for three days.

On October 7, 2025, I held a remote pre-hearing conference which was attended by the Appellant, counsel for the Town, the Town Administrator, the Town’s Human Resources Director, the Fire Chief and the Assistant Fire Chief.  On January 12, 2026, I held an in-person full hearing at Burlington Town Hall, 29 Center Street, Burlington, MA.   The hearing was audio/video recorded via Webex.  Both parties submitted proposed decisions. 

Findings of Fact

     The Appellant submitted six exhibits (A. Exs. 1-6) and the Town submitted 50 exhibits (R. Exs. 1-48, including R. Ex. 18A and R. Ex. 34A.)  Based on these documents, the testimony of the following witnesses:

Called by the Town:

  • Andrew Connerty, Former Burlington Fire Chief; 
  • Stephen Sheridan, Clinical Director, HD Physical Therapy, LLC; 

Called by the Appellant:

  • Timothy Hovasse, Appellant; 

and taking administrative notice of all pleadings filed in this case, plus pertinent rules, statutes, regulations, case law and policies, and drawing reasonable inferences from the credible evidence; I find the following:

  1. The Appellant has been employed as a firefighter with the BFD since 1999. (Testimony of Appellant) 
  2. Aside from an oral reprimand over 13 years ago related to whether the Appellant saw and properly reported minor damage to a fire apparatus being backed into the fire station, the Appellant has no prior discipline during his 26-year career with the BFD. (Testimony of Appellant and R. Ex. 42)
  3. On July 6, 2024, the Appellant, while on duty, stepped off a fire apparatus into a trench and broke a piece of bone in his left ankle. (Testimony of Appellant and R. Ex. 12)
  4. The Appellant immediately reported the injury to his lieutenant and continued to work before realizing the extent of the injury.  A few hours later, the Appellant began feeling nauseous, the pain started getting worse and his lieutenant ordered him to go home. (Testimony of Appellant) 
  5. As described in more detail below, the injury was serious enough to ultimately require surgery, wearing of a boot before and after surgery to restrict his left ankle, and extensive physical therapy sessions, all of which the Appellant attended. (Testimony of Sheridan) 
  6. Article 28 of the collective bargaining agreement (CBA) between the Town and Local 2313 IAFF provides that occupational sick leave shall be available in accordance with the provisions of Massachusetts General Laws, c. 41, § 111F, as amended from time to time (111F benefits). (R. Ex. 9) The Appellant began collecting 111F benefits, which are not taxable, at or around the time that he was out on leave due to this job-related injury. (Testimony of Appellant) 
  7. Prior to his injury, the Appellant worked 30 to 40 hours of overtime and details.  During the several months after his injury while he was collecting 111F benefits, the Appellant was not permitted to work these overtime or detail shifts. (Testimony of Appellant) 
  8.  On his way home on the day of the injury, the Appellant’s ankle was x-rayed, and he was examined by a Physician’s Assistant (PA) in the Wellesley office of Massachusetts General Hospital (MGH)’s Department of Orthopedic Surgery, Foot & Ankle Service. (R. Ex. 13)
  9. In a letter dated July 9, 2025, the MGH PA wrote in relevant part that: 

It is my medical opinion that Timothy Hovasse should remain out of work for the next 4 weeks due to his recent left ankle injury.  He will be reexamined at the next follow-up visit for clearance before returning to work.

(R. Ex. 13)

  1. The Appellant was provided with an air compression boot at the conclusion of his appointment at MGH that he could slide on, strap and then pump to restrict his left ankle while he was walking. (Testimony of Appellant) 
  2. After his visit with the PA, the Appellant sent an email to the Fire Chief and Assistant Fire Chief to update them on the visit and to let them know that an MRI was scheduled for the next day. (R. Ex. 14)
  3. The Appellant recalls that the MRI was “read wrong” by someone at MGH, causing him to seek a second opinion from Excel Orthopaedic Specialists (Excel) in Woburn, MA. (Testimony of Appellant) 

  4. On August 13, 2024, the Appellant was examined by an orthopedic surgeon (the surgeon) at Excel.   The surgeon wrote:

    1. Osteochondral defect of talus. 

    Notes:  I personally reviewed the MRI imaging studies with the patient.  We discussed the natural history of the condition as well as treatment options, including the roles for surgical and non-surgical management.  After discussing the risks, benefits, indications and alternatives, they wished to proceed with surgery for Left ankle arthroscopy, microfracture of talar dome with bio cartilage repair, extensive debridement.  There is a fluid level underneath the medial talar dome OCD and I do not feel like that would be amenable to conservative treatment as there is a crack in the cartilage layer on top caused by the recent injury. (R. Ex. 16)

  5. Under the section titled “Orders”, the surgeon indicated that the surgery would take approximately 60 minutes and wrote:  “Post-op visit 7-10 days. Post-op Therapy 7-10 days.” (R. Ex. 16)
  6. On August 16, 2024, an administrative employee for the Town sent an email to the Appellant stating:  “Hi Tim, I received notice of surgery from Excel and have sent them back an approval.  Have a good weekend.” (A. Ex. 1)
  7. In a letter dated August 20, 2024, the surgeon wrote in part:  “Please be advised that Timothy Hovasse will be having surgery on his left ankle on 09/17/2024.  At this time, Timothy is not fit for duty and will be out of work.” (R. Ex. 18)
  8. Sections 40:01:01, 40:01:02 and 40:07:01 of the CBA state in relevant part that:

Light duty is intended to allow the Chief to assign partially incapacitated firefighters who are capable of contributing to the work of the Department to perform certain regular duties of firefighters within their physical capacities. Light duty assignments apply only where it is expected that the firefighter will return to full duty.

A light duty assignment may be made by the Chief where the incapacity is due to an injury sustained in the performance of duty as defined in General Laws Chapter 41, Section 111 F.

Unless otherwise agreed by the firefighter and the Town, a firefighter who has been incapacitated in excess of two (2) weeks shall not be assigned to light duty until a physician designated by the Town Administrator or Chief has made a medical determination that he is fit for such duty.(R. Ex. 9)

  1. On August 22, 2024, two days after being notified that the Appellant was scheduled for surgery in September, the Assistant Fire Chief sent an email to the Appellant stating:  “Tim, we have scheduled an appointment for Monday 8/26/2024 at 1300 for Light Duty fitness determination” at Cambridge Health Alliance (CHA) in Somerville, MA. (R. Ex. 17) (It appears that this appointment was subsequently re-scheduled to August 28th.) 
  2. In a letter dated August 26, 2024, the Appellant’s surgeon wrote: 

Due to the current injury of his left ankle that will be requiring surgery, Timothy is not cleared to return to any level of work at this time.  He is not cleared for sedentary duty (including but not limited to being a dispatcher) and will remain out of work at this time.”  (R. Ex. 18)

  1. On August 27, 2024, the Appellant sent an email to the Assistant Fire Chief asking:  

“I have an appt with CHA at 1:30 pm tomorrow 8/28.  Is that still an obligation that needs to be met, or does my new letter cover it?”  The Assistant Fire Chief replied shortly thereafter with: “Tim, We would like you to go to the CHA appointment tomorrow.”  The Appellant acknowledged receipt of the Assistant Fire Chief’s email. (R. Ex. 17)

  1. In a “Work Status Report” dated August 28, 2024, a Town-contracted family medicine doctor (Town doctor) at CHA in Somerville indicated that the Appellant “CANNOT RETURN to work at this time” noting in a different section:  “per specific orthopedic surgeon recommendations.”  The Town doctor’s Work Status Report indicated that the Appellant’s next visit with him would be held on 9/25/24 at 1:30 P.M.  (R. Ex. 18)
  2. On September 17, 2024, the Appellant underwent arthroscopic surgery on his left ankle “with microfractures, biocartilage repair and debridement.” (R. Ex. 19 & A. Ex. 6) 
  3. On October 1, 2024, the Appellant’s surgeon issued the following orders related to rehabilitation for the Appellant: 

Evaluate & Treat as directed by therapist, joint & soft tissue mobilization.  Modalities PRN, cold, E-stimulation, Dx specific ankle rehab, Therabands.  Frequency 1-2X per week.  Duration 6-8 weeks.  Goals decrease inflammation, increase ROM, increase strength, proprioception training.  Additional instructions.  For microfracture- TDWB x 5 weeks in boot; out for Physical Therapy, ROM and sleep.  For weeks 5-10, WBAT in boot, continue Physical Therapy and ROM.” (A. Ex. 6)

  1. The Appellant was unable to walk without crutches (no weightbearing on his left ankle) for approximately eight weeks after his surgery on September 17, 2024. (Testimony of Appellant) 
  2. On November 15, 2024, the Assistant Fire Chief sent an email to the Appellant stating: “Tim, I hope all is going well with you, we received status report from CHA.  I’m not sure why but you do not need to see them until your doctor clears you.  Any questions please let me know.” (A. Ex. 1)
  3. The Appellant attended all scheduled physical therapy sessions, which started in October 2024 and eventually concluded on or about March 10, 2025, including 11 sessions between January 2, 2025 and February 5, 2025.  The BFD was provided with progress reports from each of the sessions.  (R. Ex. 20 and Testimony of Sheridan)
  4. On January 8, 2025, the Assistant Fire Chief sent an email to the Appellant stating:  “Tim, we have scheduled an appointment for Tuesday 01/14/2025 at 1300 for Light Duty fitness determination [at CHA in Somerville.]” (R. Ex. 22)
  5. On January 9, 2025, the Appellant sent a reply email to the Assistant Fire Chief stating:  “I called CHA, they had no record of my appointment.  I told them I’m meeting with the Surgeon on 1/30 so they made an appointment with the Doctor I had been seeing for 2/4 @10am.”  A short time later, the Assistant Fire Chief replied with:  “I set up and confirmed an appointment with the Doctor you have been seeing for next Wednesday 1/15 at 1300.  We understand you will be meeting with the surgeon later in the month but in reading notes from the PT sessions we believe you are able to fulfill duties of Light Duty.” (R. Ex. 22)
  6. On January 13, 2025, the Appellant emailed the Assistant Fire Chief stating:  “I am not going to be available for the appointment on the 15th.  I called and rescheduled for the 22nd at 1 pm.  That was the next earliest available appointment that my CHA doctor had.”  (R. Ex. 22) (It appears that the appointment was subsequently changed to January 24th.)
  7. Throughout the month of January 2025, the Appellant continued to attend all his schedule physical therapy appointments and the BFD continued to receive progress reports.   (R. Ex. 19)
  8. Under the heading “Subjective”, a progress report regarding the Appellant’s January 20, 2025 physical therapy session states in part:  “pt reports feeling some overall soreness with increased activity despite overall improvements.”   (R. Ex. 19)
  9. On January 24, 2025, the Town doctor from CHA in Somerville evaluated the Appellant by examining the Appellant’s ankle and having the Appellant walk down the hall. (Testimony of Appellant) The Town doctor wrote the following under “Provider Evaluation” regarding that visit: 

54yo M firefighter for the Burlington Fire Department who has been out of work after a left ankle arthroscopy, microfracture, and biocartilage repair of the medial talar dome and extensive tibiotalar joint debridement on 09/17/2025.  He is currently undergoing physical therapy and has been full weightbearing as of 10 weeks post-op.  He is currently approximately 4 months post-op and has been cleared to use the elliptical.  He notes that he does not ambulate with any support devices but has to be careful about missteps and potentials for falls.  No specific falls or disruptions to post-operative progress noted.

Of note, discussion was made with [the PA] working with [the Appellant’s surgeon], on Mr. Horvasse’s (sic) case on 01/23/2025.  She advised that at the time, Mr. Hovasse does not have any medical limitations to his ability to return to work light duty.. 

Mr. Horvasse (sic), today, reports that he has good function of his left foot and is able to ambulate without significant issue.  He has been without support devices for multiple months and has been advancing in physical therapy, soon to perform plyometric exercises.  He is not currently on any scheduled pain medications. (R. Ex. 23)

  1. In the section of the report titled “Assessment and Plan”, the Town doctor wrote in part that: “ – will clear for restricted duty; - follow-up as scheduled with [surgeon] on 1/30/2024 (sic); - patient will present for clearance to unrestricted duty eventually after discussion with surgeon and continued advancement of PT.  All questions answered and he is in agreement with the plan.”  Under the heading “Recommended Work Status”, the Town doctor wrote:  “Timothy’s recommended work status is restricted duty.  The effective date for this work status is 1/24/2025 [the same day as the visit].” (R. Exs. 23 & 24) 
  2. On Monday, January 27, 2025, the Appellant attended another scheduled physical therapy session.  The report for that session was not signed off by a “physical therapy assistant” who completed the therapy until March 27, 2025. For the first time, “ladder agility drills” were introduced as part of the Appellant’s January 27th session. (R. Ex. 19)
  3. Also on Monday, January 27, 2025, at 9:55 A.M., the Assistant Fire Chief emailed the Appellant stating:  “Tim, I received notes from an appointment last week that you can work light duty, please let me know what schedule you would prefer, i.e. 4-10 hr days [7AM to 4PM] or work with group 1 [Ten-hour day shift and a 14-hour night shift].  Any questions please let me know.”  (R. Ex. 27)
  4. Between 10:41 A.M. and approximately 4:50 P.M. on January 27th, the Fire Chief and the local fire union President (union president) had a lengthy exchange of text messages regarding whether a firefighter who returns to light duty after a work-related injury continues to be eligible for non-taxable 111F pay.  The union president’s position was that the firefighter assigned to light duty should continue receiving 111F benefits, while the Fire Chief, citing past practice, including his own personal experience, believed that returning to light duty terminated 111F eligibility, reverting to regular, taxable pay. (R. Ex. 25) 
  5. While the above text message exchange between the union president was still ongoing on Monday, January 27th, the Appellant, at 2:29 P.M., sent a reply to the Assistant Fire Chief’s email from earlier that day stating:  “I’ll be in tomorrow [Tuesday, January 28] 7am.  See how days work.” (R. Ex. 27)
  6. At 4:49 P.M., the Fire Chief sent an email to the Appellant, copied to the union president and the Assistant Fire Chief stating:

I’m aware that you are returning to work on light duty tomorrow.  I look forward to seeing you tomorrow morning.

Please be advised that a question arose regarding the taxable status of light duty pay.  For clarification, the past practice has been to return firefighters to regular pay status when assigned to light duty.  This means your pay on light duty will be taxed as full duty is. (R. Ex. 28)               

  1. At 4:52 PM, the Fire Chief, starting a new text message chain, sent a text message to the union president, and added the Appellant, telling them both that he had just sent the above email.   In response, the union president, reiterating part of what he had been arguing in the prior text message exchange solely with the Fire Chief, wrote in part:  “Don’t see why the town would be punitive to a member when they have the right not to be”.  The Appellant, believing that he was sending a text message to the Union President only, wrote:  “Should I tell him it’s illegal and I will not be returning to work until this matter is cleared up.”  (R. Ex. 26 and Testimony of Appellant)
  2. At 7:59 P.M, the Appellant sent an email to the Assistant Fire Chief stating:  “I changed my mind and will do 24 hour shifts.  Group 1 is Thursday [January 30th].  Sorry for the confusion.”  (R. Ex. 27)  The Appellant made the change to the Group 1 option starting that Thursday as he knew he had an appointment with his surgeon on Thursday and he wanted to get his surgeon’s opinion on whether he should perform light duty or not. (Testimony of Appellant) 
  3. As referenced above, the Appellant had previously notified the Deputy Fire Chief on January 9th of his scheduled appointment with the surgeon on Thursday, January 30th (R. Ex. 22) and the report from the Town Doctor on January 24th specifically referenced the Appellant’s follow-up visit with his surgeon on January 30th. (R. Ex. 23)  
  4. On Tuesday, January 28th at 12:36 PM, the Assistant Fire Chief replied via email to the Appellant stating:  “Thanks for the update, see you Thursday.” (R. Ex. 27) 
  5. At 6:47 P.M. that same day, the Fire Chief sent an email to the Appellant, copied to the union president and the Assistant Fire Chief, with a two-page letter attached stating: 

Firefighter Timothy Hovasse,

I emailed you, President Sean Connors and Assistant Chief Steven McLean yesterday, January 27, 2025 to inform you that I was aware that you had contacted Assistant Chief McLean and that you intended to return to work on light duty today, working days shifts. This is a result of a physician's note clearing you to do so that we received on Friday, January 24, 2025. You were sent to the Town's physician after being on injury leave for more than six months.

Since there was a question raised by President Connors and as a courtesy, I advised you and clarified in that email that the past practice has been to return firefighters to regular pay status when assigned to light duty, meaning that your pay on light duty will be taxed as regular duty is. Again, as a courtesy, I also texted you and President Connors about the email.

Essentially, in a responding text from you, you claimed it was illegal for this to occur and questioned President Connors ifyou should not come in until the matter is cleared up.

Subsequently, you emailed Assistant Chief McLean last evening and changed your mind about working day shifts, opting instead to work the schedule of Group 1's 24-hour shifts. You informed Assistant Chief McLean that you would accept the light duty assignment and come in to work this Thursday, January 30, 2025.

I hope to clear up any misunderstanding you may have with the following;

Under Article 40. Light Duty Policy of the FY 2023-FY 2025 Collective Bargaining Agreement (CBA), I am allowed to assign a partially incapacitated firefighter who has been out due to an on-the-job injury to light duty when they are expected to return to full duty. Additionally, Sections 5.4:03, 12.1:02 and 14.8:03, of the Burlington Fire Department (BFD) Rules and Regulations also cite the existence of light duty, a desk assignment for light duty, and a doctor's note allowing light duty.

There is clear past practice of the Chief assigning light duty to partially incapacitated firefighters due to on-the-job and off-the-job injuries and medical conditions. You yourself have taken 

advantage of Article 40 of the CBA and have previously been voluntarily assigned to light duty in order for you to preserve your sick time. Other firefighters that transitioned to light duty from 111f pay were returned to regular pay status as they were performing duties.

To be clear, you are being assigned to light duty in accordance with the provisions of the CBA and the BFD Rules and Regulations. As such, you are legally required to pay federal, state and Medicare taxes. Furthermore, the Town has a legal obligation to deduct those taxes from your pay and transmit them.

As you have indicated your willingness to Assistant Chief McLean, you are to report to the Shift Commander on Thursday, January 30, 2025 at 07:00 at Headquarters. You are being assigned to dispatch duty, in accordance with all applicable contracts and the BFD Rules and Regulations.

Please feel free to reach out to me or Assistant Chief McLean if you have any questions or concerns.

I look forward to your return to light duty. I wish you the best in your continued physical rehabilitation and look forward to your eventual return to full duty. (R. Ex. 29)

  1. Relevant portions of Sections 40:07:02 and 40:07:03 of the CBA state: 

40:07:02  Prior to or within one week of his receipt of the results of his  examination by the Town's physician, the employee shall be entitled to seek a second opinion from a physician of his own concerning his fitness to return to light duty …

40:07:03 In the event there are two conflicting medical opinions concerning the employee's fitness to perform light duty, the following procedure shall apply:

  1. The two physicians shall endeavor to select a third physician who specializes in the area of the incapacity.
  2. Failing such agreement within ten (10) days, the third physician shall be selected from a panel of physicians agreed upon by the parties as experts within the medical specialty involved. Upon the signing of this agreement, the parties shall exchange suggested specialty areas and nominees.
  3. The third physician shall be entitled to receive any and all relevant medical records and reports.

  4. The third physician shall conduct an examination of the employee at a time and place he determines, usually within two (2) weeks of his selection.

    ….

    Within three (3) days of completing the examination the physician shall issue a written report setting forth his conclusion as to the employee's fitness for light duty. Said report shall be binding on the Town, the employee, and the Union, without recourse …

    (R Ex. 9)

  5. On Wednesday, January 29th, the Appellant accessed an App used by the BFD regarding paid time off.  He requested and was “automatically” approved for sick time to attend his appointment with the surgeon on Thursday, January 30th. (Testimony of Appellant) 
  6. On Thursday, January 30th at 8:44 AM, the Fire Chief sent an email to all BFD personnel stating:  “FYI.  Tim Hovasse has been cleared to return on light duty as of today.  He is assigned to the desk.  Please join me in welcoming him back and wishing him continued progress his return (sic) to full duty.” (R. Ex. 30)
  7. That same morning, the Appellant went to his scheduled follow-up visit with his surgeon. (R. Ex. 35)
  8. In a report dated the same day (January 30th), the Appellant’s surgeon, after conducting an examination of the Appellant, wrote:  

History of Present Illness

Timothy is here for follow up status post left ankle arthroscopy, microfracture and biocartilage repair of medial talar dome, extensive tibiotalar joint debridement 9/17/24. The ankle has been feeling ok overall. He is still having pain but he feels like it is getting better. He has been keeping up with formal physical therapy and has been gradually progressing his exercises. After a PT session he goes home and ices and it will be sore for a few days before it gets better. He did some light single leg hops in PT the other day so the ankle has been more sore. He feels like since he has returned to work he has been noticing increased pain and swelling.

                        ,,,

Treatment

1. Osteochondral defect of talus

Notes: I am overall pleased by their progress. We outlined the next phase of treatment and rehabilitation for them and addressed their questions. Ongoing lower body and core strengthening will be helpful for their management. We encouraged him to continue with physical therapy to gradually progress strengthening. The ankle is not ready for impact activity such as running or jumping yet. We discussed that since he is having increased pain with progressing his physical therapy and even more so with increasing his work hours he should be out of work until his next follow up in 4 weeks.

Orders

Activity status:

Additional Instructions Patient is out of work until follow up in 4 weeks. Patient should not do any desk duty or sedentary work. (R. Ex. 35)

  1. At 1:16 P.M. on January 30th, the Appellant emailed the above report to the Fire Chief.  At 5:34 P.M., the Fire Chief sent a reply email stating:

Firefighter Hovasse,

I am acknowledging receipt of this note that you cannot do "desk duty or sedentary work." I was unaware of your intent to seek another opinion so your pay next week will reflect a portion on injured on duty and a portion on light duty. Per the CBA, had I known you were seeking another opinion, I would not have had your pay changed from injured on duty. Your pay will be reverted to injured on duty the following week and a correction will be made for this week's pay period.

I am reserving the right to seek a 3rd opinion per the CBA.

(R. Ex. 34A)

  1. At 6:06 P.M. the union president sent a text message to the Fire Chief stating: “Chief, I believe Tim had communicated to Chief McLean that he had a meeting with his surgeon scheduled for today before he was asked to see the towns doctor” followed up with an email stating:  “Chief I believe Tim had communicated more than once that he had a meeting scheduled with his surgeon today.” (A. Ex. 2) 
  2. The next day, on January 31st at 10:10 A.M., the Fire Chief sent the following email to the union president, the Appellant and others:

President Connors,

First, I was preemptively informing Firefighter Hovasse that his pay next week was adjusted due to what I understood as his agreement to return to work on light duty, which was clear In the letter emailed on January 28,2025. I did not want him to be upset that his pay had changed, so I was providing an explanation.

Second, the screenshot you provided is of an email on January 9,2025. Assistant Chief McLean informed me that he subsequently told Firefighter Hovasse that we had notes from the physical therapist Indicating that he had made improvements, so we wanted him evaluated by the Town doctor before January 30, 2025. And in fact, an appointment was made and Firefighter Hovasse attended the appointment. The note saying Firefighter Hovasse could return to work on light duty was from January 24,2025, the day he had the appointment with Cambridge Health Alliance and two weeks after the January, 9,2025 email.

As I mentioned above, the  letter I emailed to Firefighter Hovasse was on January 28,2025. In that letter I said, "that I was aware that you [Firefighter Hovasse) had contacted Assistant Chief McLean and that you intended to return to work on light duty today, working days shifts.' The letter further says that there was a question regarding tax deductions while on light duty versus tax deductions while on injured leave., I wrote in    the letter that you[Firefighter Hovasse] claimed it was illegal for this to occur and questioned President Connors if you [Firefighter Hovasse] should not come in until the matter is cleared up.' And, I also said, 'Subsequently, you [Firefighter Hovasse] emailed Assistant Chief McLean last evening [January 27, 2025] and changed your mind about working day shifts, opting instead to work the schedule of Group1's  24-hour shifts. You [Firefighter Hovasse] informed Assistant Chief Mclean that you would accept the light duty assignment and come in to work this Thursday, January 30, 2025.' And I also said, 'As you [Firefighter Hovasse) have indicated your willingness to Assistant Chief McLean, you [Firefighter Hovasse] are to report to the Shift Commander on Thursday, January 30,  2025 at 07:00 at Headquarters.

Neither Assistant Chief McLean nor I received any communication from Firefighter Hovasse indicating he didn’t agree with anything in that letter, nor reminding us of his appointment on January 30, 2025, nor his intent to not come in on light duty on January 30, 2025.  So therefore, I had no reason to believe Firefighter Hovasse was not coming back to work on light duty on January 30, 2025.  Despite any prior conversations, text or emails he had with Assistant Chief McLean or me, Firefighter Hovasse’s most recent communications with Assistant Chief McLean indicated his intent to come in on light duty on January 30, 2025.  He had ample opportunity to respond to my letter sent via email if he wanted to.  Any intent that Firefighter Hovasse had to not come back on light duty was not communicated after that letter was emailed, hence the change in pay, and the explanation about the pay change. 

  1. Ex. 2)
  2. At 10:24 A.M., the union president responded with an email stating: 

My point wasn’t that he was looking for a second opinion.  He had this appointment, with his surgeon, scheduled before he was sent to the Town Dr..  Just think this all could have been avoided had we waited to hear what the person who did the operation had to say. 

  1. Ex. 2)
  2. Approximately 20 minutes later, the Fire Chief replied with: 

There is no avoiding it.  There are PT notes that conflict with the surgeon’s assessment.  We all should be working together in concert with the CBA. My point is that if Firefighter Hovasse had said he was coming to work but his actual intent conflicted with his words as documented in the letter that I emailed.  Think of what could have occurred had he responded that he was not intending to come to work on light duty.

  1. Ex. 2)
  2. At no point during the above email or text exchanges was the Appellant ever ordered to appear for light duty. 
  3. The Appellant continued to attend his physical therapy appointments in February 2025.  The physical therapy progress report from February 3, 2025 indicates that the Appellant began “plyo with shuttle jumps (light)” with “poor / fair balance.” (R. Ex. 20)
  4. The physical therapy report from February 5, 2025 indicates that the Appellant participated in both ladder agility training as well as “plyos” and that he was “ready to work out”. (R. Ex. 20)
  5. After a follow-up visit on February 27, 2025, the Appellant’s surgeon cleared him to return to work on March 3, 2025. (A. Ex. 2)
  6. On March 10, 2025, the Town’s Doctor concurred with the Appellant’s surgeon that the Appellant could return to full duty effective immediately. (R. Ex. 38)
  7. One day later, on March 11, 2025, the Fire Chief notified the Appellant and the union president that: “I am conducting an investigation into the circumstances where Firefighter Hovasse did not return to work on light duty, including the truthfulness of what FF Hovasse said to his physician.” (A. Ex. 3) 
  8. Among the nine attachments to the Fire Chief’s email was a document titled “Chief notice to Hovasse Investigation directive to answer questions”.  That five-page attachment began with the following paragraph:

I am investigating the circumstances under which you refused to return to work to perform light duty—desk duty/ dispatching (“dispatching”)—including but not limited to whether you did not tell the truth to your treating physician in order to avoid returning to work.

(A. Ex. 3)

  1. Seven of the Fire Chief’s questions focused on that part of the surgeon’s January 30th notes referencing that the Appellant had noticed increased pain and swelling “since he has returned to work” with some of the questions asking whether the Appellant had been working somewhere else while out on injured leave. (A. Ex. 3)
  2. The remaining three questions, and the Appellant’s written answers (in italics), were as follows:
  3. Did you discuss with [the surgeon] that you were being returned to light duty at the BFD? Yes.
    1. If so, what did you tell him about the light duty work you would be doing? I told him that light duty was working in the dispatch area of the Fire Station at Headquarters.  I explained that it consisted of answering 911 medical / fire calls, going from computer to computer plugging out boxes and dispatching trucks to where they needed to go.  I also told him that I needed to attend to people at the walk up window who were seeking directions, filling out forms and answering general questions pertaining to the fire department. 
    2. What did you tell him about your physical ability to do Dispatching?  If you told him that you were physically unable to do Dispatching, what did you tell him made you physically unable? I told him I was apprehensive about returning to work in the dispatch area.  It’s a cramped area with a lot of traffic and I was unsure if it was worth taking a chance on re-injury where I was already having an increase in pain in my left ankle due to the increase in the level of physical therapy. 
    3. What did you tell him about your willingness to return to light duty to do Dispatching?  If you told him that you did not want to do Dispatching, why did you tell him that you did not want to do Dispatching? Due to the fact I was beginning Plyometric Exercises, I told [the surgeon] that I didn’t think that going back to ‘light duty’ was the best option for me at this moment.  I was told by the Physical Therapist that I would be experiencing a sharp increase in pain and swelling over the next few visits.  My main goal was to get through the next few weeks and reassess my situation.  I told him that the dispatch area can become very chaotic during incidents and I did not want to risk the progress that I had made.  He agreed. (A Ex. 3)
  4. On April 8, 2025, the Fire Chief notified the Appellant that the Appellant was being charged with violating various rules of the BFD including those related to: feigning illness, injury or incapacity; untruthfulness or willful misrepresentation; and conduct unbecoming a member. (A Ex. 3)
  5. The underlying conduct that the Fire Chief cited to support the above rule violations included the Appellant allegedly making “false statements to [the surgeon] to cause him to provide a note conflicting with [the Town doctor]’s determination that you could perform light duty”; and not “tell[ing] the truth in my investigation.” (A. Ex. 3)
  6. The Fire Chief wrote the following in the charge letter in support of the charge of untruthfulness:

In the investigation Questions, I asked you about what [the surgeon] had written in his report from your January 30th appointment, i.e., 

“He feels like since he has returned to work he has been noticing increased pain and swelling” …

“We discussed that since he is having increased pain with progressing his physical therapy and even more so with increasing his work hours he should be out of work until his next follow up in 4 weeks.”

Your responses included:  “The ‘work’ that I described to [the surgeon] may be in reference to the increased difficulty in physical therapy. I was getting ready to start plyometric training and had increased my exercise at home to include stationary bike riding and a “Zero Runner” (similar to an elliptical machine but it hinges at the knee so it mimics running without the impact.)”

[The surgeon] report indicates that the work that you told him you had been doing and it caused you increased pain was separate and apart from your physical therapy.  When he refers to what you said about physical therapy, he writes physical therapy.  When he refers to what you said about work, he writes “work”. 

In your responses you also wrote that you had not been doing any work at the fire department or elsewhere after you injured your ankle on duty on July 6. 

Your report to [the surgeon] that you had experienced pain in your ankle from working after July 6 was false. 

Your report to [the surgeon] that “I was told by the physical therapist that I would be experiencing a sharp increase in pain and swelling over the next few visits” is not found anywhere in the physical therapy notes describing your session on January 27, just three (3) days before your appointment with [the surgeon]. (copy of January 27 PT notes attached). 

This part of your report to [the surgeon] was also false. 

Further, you reported to the surgeon that “ … I was apprehensive about returning to work in the dispatch area. It's a cramped area with a lot of traffic and I was unsure if it was worth taking a chance on reinjury where I was already having an increase in pain in my left ankle due to the increase in the level of physical therapy.”

This repeated the false statement that you made about having increased pain during your physical therapy. At the very least it also exaggerated the physical risk dispatchers faced from performing dispatching.  In any event, you never claimed to [the town doctor] or me that you were having increased pain during physical therapy that would prevent you from doing dispatching work. 

The evidence gathered in the investigation would indicate that you simply were not willing to return to light duty including because it would mean taxes would be deducted from your pay and that you convinced [the surgeon], including by making false statements, to provide a note stating that you could not do even sedentary work including desk duty as of January 30. 

  1. Ex. 3)
  2. Although civil service appointing authorities may impose suspensions of five days or less without first having a hearing, the BFD held a hearing over two days on May 6th and May 30th, 2025. (A. Ex. 3)
  3. At the hearing on May 6th, union counsel stated that the Appellant had not worked anywhere since he was injured on July 6th and that the surgeon’s report that the Appellant had been working was a misunderstanding. The Fire Chief continued the hearing to May 30th to allow the Appellant to submit a note from the surgeon. (R Ex. 1)
  4. Between May 6th and May 30th, the Appellant provided the Fire Chief with the following note from the surgeon:

03/18/2025 05:06 PM EDT … This addendum is for clarification for this note on 1/30/2025. The patient indeed did not return to any kind of work. I misunderstood and he was directed by his town physician that he could go back in a sedentary position but since he had aggravated the ankle doing some jumping activities in physical therapy, he had increased pain and expressed concern to us about the potential for going back even in a sedentary position because he felt like he lost some ground. We treated this conservatively and he ended up improving and then was released to return to work with a return date of 3/3/2025 at a later visit. Again he did not end up returning to work and there was no increase in work hours as he had not yet returned to work as a firefighter or any other activity/occupation. (R. Ex. 35)

  1. Also, on May 20, 2025, the Clinical Director at the Physical Therapy center penned a letter stating: 

Please be advised that in physical therapy we certainly track objective progress of patients in many ways including ROM, flexibility, strength, balance and functional performance as well as subjective reports of pain.  However, we rely on referring physicians in order to determine patients’ return to work and sport readiness.  The patient’s doctor will always have the first and final say in these matters and we rely on their guidance. (A. Ex. 4)

  1. On August 27, 2025, the Fire Chief issued a 12-page decision upholding the charges of untruthfulness, feigning an illness, and conduct unbecoming and suspended the Appellant for 3 calendar days, which encompassed one, 14-hour shift in addition to being prohibited from performing details, overtime or call backs during the three calendar days. (A. Ex. 3)
  2. The Fire Chief’s 13-page letter imposing the suspension on the Appellant included dozens of findings and a conclusion.  The Fire Chief found the following in regarding to the Appellant: 

Your Therapists' Reports Conflict With What You Told [the surgeon] On January 30 About The Problems You Were Having In Physical Therapy. The Reports Show That:

  • You were not experiencing increased difficulty/pain from your PT sessions.
    • Your only reports of any discomfort were in the January 15 and 20 sessions, i.e, "overall soreness with increased activity despite overall Improvements."
    • You did not tell the therapist nor did the therapist observe that you had experienced any pain and/or discomfort in any of the 6 other sessions, including the last three sessions-January 22, 27, 29--- that took place starting just over a week before your January 30 appointment with [the surgeon].
    • At the January 29 session, you reported to the therapist that you were "feeling stronger and more confident overall."
  • You were not required to do "jumping activities" in pt but you told [the surgeon] that you were and that was causing you increased pain. In fact, the therapy reports consistently list "No running/jumping until cleared" as restrictions.

  • You never reported that you thought that you had been losing ground in your physical therapy. In fact, your therapists consistently report:

    Pt is making consistent progress w/ L ankle ROM, strength, balance/prop, gait and stair mechanics,  testing and overall functional act tol, but cant's w/ minor deficits in most areas. He will benefit from cont'd skilled PT to address his remaining impairments, reach his goals and return to his PLOF including full RTW w/o restrictions.

  • No therapist told you regarding your upcoming therapy sessions after January 30 " ... that I would be experiencing a sharp increase in pain and swelling over the next few visits."  Even if a therapist told you that you could expect an increase in symptoms at the next stage of your therapy, it did not excuse you from reporting for light duty. If it turned out that you did experience symptoms that left you unable to do dispatching, you would have been allowed to miss your work shift.  

    (R. Ex. 1)

  1. The Fire Chief’s letter to the Appellant concludes that:  

You did not tell the truth to [the surgeon] during your January 30 visit, including but not limited to when you told him that you were having increased pain and losing ground in physical therapy. Based on these false reports, you then told him that you were apprehensive that you might re-injure your ankle working light duty as a Dispatcher. You did not tell the truth because you wanted him to write a note indicating that you could not work as a dispatcher, and he did so. (R. Ex. 1)

  1. After Appellant appealed the Fire Chief’s decision to the Town Administrator, who serves as the Appointing Authority, a hearing was held on September 24, 2025 and the Town Administrator issued a decision on October 3, 2025 upholding the Fire Chief’s decision to suspend the Appellant. (R Ex. 2)

A tenured civil service employee aggrieved by a disciplinary decision of an appointing authority made pursuant to G.L. c. 31, § 41, may appeal to the Commission under G.L. c. 31, § 43, which provides in relevant part as follows: 

If the commission by a preponderance of the evidence determines that there was just cause 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 authority's 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 other rights. The commission may also modify any penalty imposed by the appointing authority. 

Under Section 43, the Commission is required “to conduct a de novo hearing for the purpose of finding the facts anew.” Town of Falmouth v. Civil Service Comm’n., 447 Mass. 814, 823 (2006). However, “[t]he commission's task … is 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.’” Id., quoting internally from Watertown v. Arria, 16 Mass. App. Ct. 331, 334 (1983). 

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.” Comm’rs of Civil Serv. v. Mun. Ct. of the City of Boston, 359 Mass. 211, 214 (1971); Cambridge v. Civil Service Comm'n., 43 Mass. App. Ct. 300, 304 (1997); Selectmen of Wakefield v. Judge of First Dist. Ct., 262 Mass. 477, 482 (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 Comm’n, 43 Mass. App. Ct. 486, 488 (1997); Murray v. Second Dist. Ct., 389 Mass. 508, 514 (1983). 

Section 43 of G.L. c. 31 also vests the Commission with authority to affirm, vacate or modify discipline but that discretion is “not without bounds” and requires sound explanation for doing so. See, e.g., Police Comm’r v. Civil Service Comm’n, 39 Mass. App. Ct. 594, 600 (1996) (“The power accorded to the commission to modify penalties must not be confused with the power to impose penalties ab initio . . . accorded the appointing authority”); see also Falmouth, 447 Mass. at 823, quoting Watertown v. Arria, 16 Mass. App. Ct. 331, 334 (1983). However, the Supreme Judicial Court has added that, in the absence of “political considerations, favoritism, or bias,” the same penalty is warranted “unless the commission’s findings of fact differ significantly from those reported by the town or interpret the relevant law in a substantially different way.” Falmouth, 447 Mass. at 824.

Analysis

                The Town has not shown, by a preponderance of the evidence, that the Appellant is guilty of substantial misconduct which adversely affected the public interest by impairing the efficiency of public service.  To put this in the proper context, the Appellant is a 26-year veteran of the Burlington Fire Department.  Prior to the matter currently before the Commission, he had a nearly spotless record, with only one verbal warning, over 13 years ago, regarding whether he saw and properly reported a minor scrape to a fire apparatus that was backed into the fire station by another firefighter.  

In July 2024, the Appellant, while on duty, sustained an injury to his ankle that required surgery.   The Appellant’s actions thereafter provide strong indicia that he was committed to returning to work as a firefighter.  He promptly scheduled and underwent surgery and followed a rather rigorous rehabilitation schedule ordered by his surgeon over a period of months.  Although the Appellant, while out on leave, was receiving tax-free 111F benefits, he was also ineligible for lucrative overtime, detail and call-back pay during his leave.  Put another way, the evidence does not support the picture being painted by the Town of a firefighter trying to game the system for financial gain. 

                In fact, certain evidence put forth by the Town to paint that portrait drew me to an entirely different conclusion.  Specifically, things turned sideways for the Appellant shortly after the Fire Chief and the union president engaged in a lengthy and robust text message exchange about whether the Town could, or should, end a firefighter’s 111F benefits when transitioning back to work under light duty.  Their sparring focused on a more global issue impacting all firefighters and had all the makings of a good old-fashioned management-labor dispute regarding how language in the CBA should be interpreted.  

While still involved in the text message exchange with the union president, the Fire Chief sent an email to the Appellant to confirm that he (the Appellant) was returning to work on light duty and informing him that his 111F benefits would indeed end upon beginning light duty.  The Fire Chief then followed up the email with a text message to the union president and the Appellant informing them that the email had been sent.   The prior, hours-long back-and-forth between the union president and the Fire Chief clearly carried over to this new, expanded text message exchange, with the union president calling the Town and (Chief)’s decision punitive.  The Appellant, unaware that the Fire Chief was a participant in the group text, responded to the union president’s text by asking whether he should tell the Fire Chief that his order was illegal and that he would not be returning to work until this matter is cleared up.  The Town sees that message as a smoking gun showing ill intent.  I do not.  Rather, the Appellant was, in effect, simply asking the union president whether the Fire Chief’s light duty order was legal or not, something not uncommon in a unionized workplace.  By sending that message, however, the Appellant had unwittingly walked chin-deep into the more global conflict over how to interpret the law and the language in the CBA.  From that point forward, the evidence shows that all the Appellant’s words and actions were suddenly put under a lawyerly microscope with what appears to be a pre-determination to portray the Appellant in the most unfavorable light possible. 

To be clear, certain statements and actions by the Appellant during this period warrant a degree of skepticism. However, for the reasons discussed below, they do not support the damning and reputation-impugning conclusions that the Appellant made untruthful statements to his surgeon and the Fire Chief.

A significant part of the initial untruthfulness charges that gave rise to the investigation against the Appellant relied on a reference in the surgeon’s notes about the Appellant having experienced pain after returning to work.  In fact, seven of the ten questions posed to the Appellant by the Fire Chief as part of the investigation pertained to this issue.  After the first day of hearing at the local level, however, the surgeon subsequently issued a written clarification saying that he simply got it wrong, and that the Appellant never mentioned having gone back to work during the evaluation.  With 70% of the investigation now addressed through the surgeon’s letter, the Fire Chief seamlessly switched gears, ultimately writing in the suspension letter:  “setting aside [the surgeon]’s misunderstanding, what you told him and what you wrote in response to questions in my investigation significantly conflicts with the reports from your physical therapy sessions in January prior to your January 30 appointment with [the surgeon].”   There are two troubling aspects to this.  First, the Fire Chief never even acknowledges that the serious untruthfulness charges related to the purported “returned to work” comments were, in retrospect, unfounded.  Rather, he simply shifts focus to other allegations of purported untruthfulness.  Second, the Fire Chief creates a new metric to define untruthfulness here, effectively requiring perfect symmetry between:  1) statements made or not made by the Appellant during his physical therapy sessions (assuming that the PT reports capture everything the Appellant said); 2)  statements made or not made by the Appellant to his surgeon on January 30th; and 3) the written responses to the Chief as part of the investigation.  Taken together, the failure to acknowledge that the first prong of the charges was unfounded and the new (somewhat indecipherable) truthfulness metric have all the indicia of a result-driven investigation in which the Town was determined to show that the Appellant was being untruthful, feigning illness and engaging in conduct unbecoming a firefighter.

In assessing whether this perfect symmetrical standard was met, the Fire Chief signed off on a painstakingly detailed and often confusing letter that analyzed almost every word of various statements and often reached subjective conclusions that required interpreting ambiguity against the Appellant at every turn.   That notwithstanding, I attempted to identify the actual instances of alleged untruthfulness raised by the Town to see if they were proven by a preponderance of the evidence.  

The notice of discipline states in part that: 

You told [the surgeon] the following:

“ … he is having increased pain with progressing his physical therapy …

… since he had aggravated the ankle doing some jumping activities in physical therapy, he had increased pain and expressed concern to us about the potential for going back even in a sedentary position because he felt like he lost some ground  …

… We discussed that since he is having increased pain with progressing with physical therapy … he should be out of work until his next follow up in 4 weeks.

To ensure accuracy, the Fire Chief’s letter should have said that the surgeon’s report indicates that you made these statements.  Regardless, nothing in that section of the letter proves untruthfulness.  They are mere excerpts from the surgeon’s report.  The next several pages of the Fire Chief’s letter contain excerpts from various reports written by physical therapists as well as the written responses that the Appellant provided to the Fire Chief with various parts highlighted in bold and italics.  Again, the Fire Chief’s letter, up to this point, does not specifically identify instances of alleged untruthfulness, but, rather, simply lays out the various statements contained in the PT reports and the Appellant’s responses to the Fire Chief.  

Then, on page 11 of the Fire Chief’s Letter, prior to stating what the alleged conflicting statements are, there is a new heading which states:  “Your therapists’ reports conflict with what you told [the surgeon] on January 30 about the problems you were having in physical therapy.”   Without explanation, this new heading drops any reference to the Appellant’s written responses to the Fire Chief.  

Seeking clarity on the alleged instances of alleged untruthfulness, I looked to the four main bullet points on page 11 after the revised heading referenced above.  Main bullet point 1 states:  “You were not experiencing difficulty / pain from your PT sessions”.   To support this allegation of untruthfulness, the Fire Chief’s letter then states:  “your only reports of any discomfort were in the January 15 and 20 sessions, i.e, ‘overall soreness with increased activity despite overall improvements.”  Merriam-Webster’s definition of soreness is:  “the quality or state of being sore, such as painfulness … something sore or painful and a synonym for soreness is pain.” The Town’s attempt to portray this statement as an example of untruthfulness goes beyond interpreting ambiguity against the Appellant; it is just plain wrong.  While the clinical director at the physical therapy office testified about his clinical distinction between the two terms, the Appellant is not a clinician, and using the terms pain and soreness interchangeably cannot form the foundation of an untruthfulness charge. 

Skipping to main bullet point 4, the Fire Chief found that:  “No therapist told you regarding your upcoming therapy sessions after January 30th that you “ … would be experiencing a sharp increase in pain and swelling over the next few visits.’”   Likely anticipating the argument that such a statement might not possibly be captured in a PT report about a completed PT session, the Town seeks to proactively salvage this finding with the following footnote:  “Even if a therapist told you that you could expect an increase in symptoms at the next stage of your therapy, it did not excuse you from reporting from light duty.  If it turned out that you did experience symptoms that left you unable to do dispatching, you would have been allowed to miss your work shift.”   The Town can’t have it both ways.  If a physical therapist did indeed tell the Appellant that he may be experiencing pain at the next stage of his therapy, then the charge of untruthfulness is unfounded.  

There is another problem with the above alleged instance of untruthfulness.  The Town relies heavily on the progress reports in January, including one dated January 27th (shortly before his visit with his surgeon) and the fact that these progress reports don’t capture this conversation, as relayed by the Appellant that he may experience increased pain going forward.  As the clinical director testified, that January 27th progress report was not completed by an assistant physical therapist until March 27th, two months after the visit, which the clinical director expressed surprise about during his testimony before the Commission.   Further, the Town never made any attempt to question the assistant physical therapist who signed the January 27th report and instead sought to shift the burden of proof by alleging that it was the Appellant’s burden to call that assistant physical therapist to testify before the Commission.  The Town’s further argument that the Appellant alleged that he was told this by a “physical therapist” as opposed to an “assistant physical therapist” is another example of hair-splitting to portray the Appellant as being untruthful.  The Town had ample opportunity to call the signatories of that progress report as witnesses and they did not. 

More substantively, I found the Appellant’s testimony before the Commission regarding this matter to be logical and believable. He had just started agility testing and would soon being engaging in “plyo” training which would involve jumping exercises.  It rings true to me that the assistant physical therapist might say that the Appellant could be experiencing more pain as he progressed to the next level of physical therapy.  In short, the Town has not proven that the Appellant’s comment to his surgeon on this point was untruthful.

Further, the Town makes much of the PT instructions indicating “no jumping” to label the Appellant’s references to jumping as untruthful.  A review of the entire record, and the credible testimony of the Appellant, shows that this finding by the Town was most likely a misunderstanding about timing by the surgeon.  As referenced above, the Appellant was eventually required to do PT exercises that involved jumping, and whether a surgeon with a busy schedule simply mis-remembered whether the reference was to past or future jumping is not sufficient to prove a charge of untruthfulness on the Appellant’s part. 

The other instances of alleged untruthfulness are even less supportable.  For example, the Town labels the Appellant as untruthful for expressing concern to his surgeon that he might re-injure his ankle by performing light duty, which did involve working and walking in a smaller dispatch area and greeting members of the public in the lobby.  While the Fire Chief may have had a different opinion, that does not support the charge that the Appellant was being untruthful to his surgeon. Labeling a candidate as untruthful can be an inherently subjective determination that should be made only after a thorough, serious, and uniform review that is mindful of the potentially career-ending consequences of such a conclusion. Dabene v. Boston Police Department, 31 MCSR 143 (2018); Morley v. Boston Police Department, 29 MCSR 456 (2016).

Finally, once the Appellant’s orthopedic surgeon issued an opinion contrary to the family doctor in Somerville regarding whether the Appellant should engage in light duty, the CBA provided an unambiguous path for resolution – a final, binding opinion to be rendered by a new physician chosen by the two initial doctors or from among a list agreed to by the parties.  That never happened.  Instead, the Fire Chief initiated a full-blown investigation accusing the Appellant, among other things, of untruthfulness, the highly consequential charge that follows the Appellant for his entire career.

In summary, based on a de novo review of the events here, including all the documents submitted and the credible testimony of the Appellant, I find that there was not just cause to discipline the Appellant as the Town has not shown, by a preponderance of the evidence, that the Appellant was untruthful – to either the Fire Chief or his surgeon.  

Conclusion

The Appellant’s appeal under Docket No. D-25-206 is hereby allowed.  Pursuant to Section 43 of Chapter 31, the Appellant shall be returned to his position without loss of compensation or other benefits. 

Civil Service Commission

/s/ Christopher Bowman

Christopher C. Bowman

Chair

By vote of the Civil Service Commission (Bowman, Chair; Dooley, Markey, McConney, and Stein, Commissioners) on May 28, 2026.

Either party may file a motion for reconsideration within ten days of receipt of this Commission order or decision. Under the pertinent provisions of the Code of Mass. Regulations, 801 C.M.R. § 1.01(7)(l), the motion must identify a clerical or mechanical error in this order or decision or a significant factor the Agency or the Presiding Officer may have overlooked in deciding the case.  A motion for reconsideration does not toll the statutorily prescribed thirty-day time limit for seeking judicial review of this Commission order or decision.

Under the provisions of G.L. c. 31, § 44, any party aggrieved by this Commission order or decision may initiate proceedings for judicial review under G.L. c. 30A, § 14 in the superior court within thirty (30) days after receipt of this order or decision. Commencement of such proceeding shall not, unless specifically ordered by the court, operate as a stay of this Commission order or decision.  After initiating proceedings for judicial review in Superior Court, the plaintiff, or his / her attorney, is required to serve a copy of the summons and complaint upon the Boston office of the Attorney General of the Commonwealth, with a copy to the Civil Service Commission, in the time and in the manner prescribed by Mass. R. Civ. P. 4(d).

Notice to: 

Timothy Hovasse (Appellant) 

Leo Peloquin, Esq. (for Respondent) 

  1. The parties agree that, over the three-day period, the suspension resulted in the loss of only one, 14-hour shift, in addition to a prohibition against working overtime or details during the three-day period. 
  2. The Standard Adjudicatory Rules of Practice and Procedure, 801 C.M.R. § 1.01 (formal rules), apply to adjudications before the Commission    with Chapter 31 or any Commission rules taking precedence.
  3. Should there be a judicial appeal of this decision, the plaintiff in the judicial appeal is obligated to supply the court with a transcript of this hearing to the extent that they wish to challenge the decision as unsupported by substantial evidence, arbitrary or capricious, or an abuse of discretion. In such cases, the plaintiff in the judicial appeal must transcribe the transcript from the Commission’s official recording.
  4. Andrew Connerty has since retired from the position as Burlington Fire Chief but is referred to as “Fire Chief” throughout for purposes of clarity.
  5. The subsequent letter from the Town Administrator added on an entirely new finding of untruthfulness, stating:  “There was no basis for you to tell [the surgeon] that, if you had to perform light duty / dispatching, you would be at-risk of re-injuring your ankle.”  This was never stated in the surgeon’s report, but, rather, in the Appellant’s answers to the Fire Chief regarding what he told the surgeon.   First, since this allegation was not cited in the Fire’s Chief suspension letter, the Town cannot effectively add-on a new charge when the Appellant seeks to appeal the suspension to the Appointing Authority.  Further, the charge is far too subjective to prove untruthfulness.           
     

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