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Decision

Decision  Walsh, Mitchell v. City of Fall River 3/5/26

Date: 03/05/2026
Organization: Civil Service Commission
Docket Number: D1-25-131
  • Appearance for Appellant: Alan Shapiro, Esq.
  • Appearance for Respondent: Jennifer Benjamin, Esq. and Gary Howayeck, Esq.
  • Hearing Officer: Paul M. Stein

The Commission upheld the City of Fall River’s decision to terminate the employment of a police officer based on evidence of his repeated use of illegal drugs and other violations of the Police Department’s Rules and Regulations. 

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Decision

The Appellant, Mitchell Walsh (Appellant), acting pursuant to G.L. c. 31, § 43, timely appealed to the Civil Service Commission (Commission), contesting the May 5, 2025 decision of the City of Fall River (City) to terminate him from his position as a police officer with the Fall River Police Department (FRPD).

A remote pre-hearing conference was held on June 24, 2025.[1] On November 6, 2025, I held a full evidentiary hearing at the University of Massachusetts School of Law in Dartmouth, which was audio /video recorded via Webex. The parties received links to the recording.[2] Both parties submitted proposed decisions.  For the reasons set forth below, the Appellant’s appeal is denied.

Findings of Fact

Based on the exhibits entered into evidence (App. Exhs.1 & 2[3]; Resp. Exhs.1 through 25) and the testimony of the following witnesses:

Called by the City:

  • FRFD Lieutenant Matthew Mendes, Office of Professional Standards
  • FRFD Chief of Police Kelly Furtado

Called by the Appellant:

  • No witnesses were called by the Appellant

and taking administrative notice of all matters filed in the case, pertinent law and reasonable inferences from the credible evidence, a preponderance of evidence establishes these facts:

Background and Applicable Policies

  1. The City of Fall River is the Appointing Authority for the Fall River Police Department. (Resp. Exhibit 2)
  2. The Appellant, Mitchell Walsh, began his employment as a police officer with the FRPD on March 11, 2021. (Stipulated Facts; Resp. Exhibit 2).
  3. The Appellant was terminated from his FRPD employment on May 21, 2025. (Resp. Exhibit 2)
  4. Throughout his employment, the Appellant was subject to the terms of the Collective Bargaining Agreement between the City of Fall River and the Fall River Police Association (CBA). This CBA includes a provision, set out in Article XXV, that governs both routine (annual) and reasonable suspicion drug testing of all FRPD officers, and the consequences of positive drug tests. (Resp. Exhibit 11; Resp. Exhibit 19; Testimony of Chief Furtado).
  5. Section B of Article XXV of the CBA governs routine drug testing. It states that the FRPD is authorized to conduct annual drug testing on up to 25% of the FRPD employees in the bargaining unit each fiscal year. Employees to be tested are chosen at random, and the testing must occur no more than thirty days before or after the employee’s birthday. Drugs for which employees are tested are: amphetamines, barbiturates, benzodiazepines, cocaine, marijuana, methadone, methaqualone, opiates, phencyclidine, propoxyphene, steroids, and synthetic opiates. (Resp. Exhibit 11; Respondent Exhibit 19)
  6. Section A of Article XXV of the CBA governs reasonable suspicion drug testing. It states that “sworn officers shall be required to submit to drug tests where there is reasonable suspicion that the officer is using or is under the influence of drugs.” Reasonable suspicion is defined as a “belief based on objective facts sufficient to lead a reasonably prudent person to suspect that an employee is using or is under the influence of drugs so that the employee’s ability to perform his/her duties is impaired.” The Chief of Police or their designee (in their absence) has the authority to initiate an order for a sworn officer to submit to drug testing based on this standard. A review committee must then be established “for the purpose of determining whether the Chief had reasonable suspicion to order the drug test.” The committee must be composed of one representative selected by the Chief, one selected by the Union, and a third selected by the first two representatives. The Committee’s “review of the Chief’s directive must be completed within 24 hours; however, the officer must submit the sample prior to the review committee’s determination.” If reasonable suspicion is found, the sample submitted by the officer must be sent to a reputable testing facility, after consultation with the association. (Resp. Exhibit 11; Resp. Exhibit 19; Testimony of Mendes)
  7. Article XXV of the CBA also sets out the consequences for any positive drug test, either a routine drug test or a reasonable suspicion drug test. This provision specifies that the first time an officer tests positive for drugs, they must be given an opportunity to enroll in a rehabilitation program (unless they used, sold, or purchased drugs while on active duty). Article XXV, Section (A)(5). If an officer refuses to participate in the rehabilitation program, they may be discharged, subject to statutory appeal rights. Article XXV, Section (A)(5)(b). If an officer successfully completes the rehabilitation program, but subsequently tests positive for drugs, “then the officer may be immediately disciplined, up to and including discharge, subject to statutory appeal rights.” Article XXV, Section (A)(6). (Resp. Exhibit 11; Resp. Exhibit 19)
  8. As an employee of the FRPD, the Appellant was also subject to rules, regulations, and policies of the City and the Fall River Police Department, which include, but are not limited to, the FRPD Leave Benefit Programs Policy, Policy CO3-14. (App. Exhibit 2.7[i]; Resp. Exhibit 10; Testimony of Chief Furtado)
  9. The FRPD’s Leave Benefit Programs Policy includes a provision entitled “Sick Leave Confinement.” This provision states: “All officers disabled from work due to sickness or non-duty injury and carried on sick leave shall remain at their residence, unless they receive permission from their respective division/unit commander or their designee to leave the residence for specific purposes as outlined below.” (App. Exhibit 2.7; Resp. Exhibit 10)
  10. The Leave Benefit Programs Policy sets out nine enumerated purposes for which an officer may request to leave their residence during “Sick Leave Confinement.” (App. Exhibit 2.7; Resp. Exhibit 10; Testimony of Chief Furtado)
  11. The nine specific purposes in the policy are: (a) to keep scheduled appointments with physicians, dentists, physical therapists, hospitals or clinics; (b) to purchase food, household necessities, or medications or for the health care of minor children; (c) to attend church or other religious services; (d) to register to vote or to vote in elections; (e) to engage in physical exercise as recommended in writing as to type, amount, duration and reason for such exercise by the officer’s physician; (f) to answer court subpoenas in cases arising out of the officer’s employment; (g) to report to the station as requested by the Chief of Police; (h) to report to the station or another facility to be examined by the FRPD’s medical advisor; and (i) to attend scheduled counseling as authorized by the Chief of Police if such counseling is to help ensure the officer’s return to duty. (Resp. Exhibit 10)
  12. In circumstances where an officer on “Sick Leave Confinement” seeks to leave their residence for a reason other than one of the nine enumerated purposes, the Leave Benefit Programs Policy provides: the “Chief of Police may approve other purposes in special circumstances.” (App. Exhibit 2.7; Resp. Exhibit 10; Testimony of Chief Furtado)
  13. Additionally, the Leave Benefit Programs Policy details the protocol an officer must follow when requesting to leave their residence while on “Sick Leave Confinement.” “Sick or injured officers must obtain permission for every absence from their residence, until they return to work. This includes the time periods during which an officer would be, if working, on days off or non-work hours.” The officer must state their purpose for leaving their residence, their destination, their planned time of departure and their estimated time of return to their residence. Upon returning to their residence, the officer must call and notify their division or unit commander. It is the responsibility of the division/unit commanders to keep a log of the name of the officer calling in, the stated purpose for leaving their residence, their destination, their planned time of departure, and the estimated time of return to their residence. (App. Exhibit 2.7; Resp. Exhibit 10; Testimony of Chief Furtado)
  14. Officers who fail to comply with the requirements of “Sick Leave Confinement” may be subjected to discipline for violation of FRPD rules and regulations. (App. Exhibit 2.7; Resp. Exhibit 10; Testimony of Chief Furtado)

Events Prior to Appellant’s Termination

  1. The Appellant tested positive for cocaine use on August 9, 2023, following an FRPD annual drug screening urine test conducted by Advantage Drug Testing, and in accordance with Article XXV of the CBA. The accuracy of this testing was not challenged at hearing. (App. Exhibit 2.15; Resp. Exhibit 4; Resp. Exhibit 11; Resp. Exhibit 19; Testimony of Mendes)
  2. Due to the Appellant’s positive drug test result, in accordance with Article XXV of the CBA, the FRPD provided the Appellant with the opportunity to enter a rehabilitation program. (App. Exhibit 2.15; Resp. Exhibit 4; Resp. Exhibit 11; Resp. Exhibit 19)
  3. The Appellant entered and completed a rehabilitation program. He engaged in inpatient treatment from August 18, 2023 through September 5, 2023. (App. Exhibit 2.15; Resp. Exhibit 20)
  4. In 2024, the Appellant was investigated for abuse of sick leave. (App. Exhibit 2.1)
  5. Per the CBA, an officer is allotted six undocumented sick days within a 12-month period. In accordance with the FRPD Leave Benefit Policy (Sick Leave Medical Certification provision), an officer must call out when sick and is required to submit a doctor’s note within 3 days of returning to work for a sick day to be deemed a documented absence. (Resp. Exhibit 19; App. Exhibit 2.8)
  6. On September 24, 2024, the Appellant was notified that a personal day was deducted from his account due to his accumulation of a seventh undocumented sick day. (App. Exhibit 2.17)
  7. On March 3, 2025, the Appellant’s Divisional Commander, Captain David Murphy, notified FRPD Deputy Chief James Hoar, in writing, that the Appellant was “showing a downward spiral of attendance.” Captain Murphy wrote that the Appellant had worked for only 3 out of 17 shifts in January 2025, 8 out of 18 shifts in February 2025, and he had already exhausted his 6 undocumented sick days allotted for the 2025 year. Captain Murphy’s correspondence also referenced the Appellant’s 2024 sick day totals: 26 documented sick days and 11 undocumented sick days. Captain Murphy wrote that there “is a trend where he has used sick days compiled with personal days, comp days, vacations or in service to remain out [of] work for an extended period.” (App. Exhibit 2.1)
  8. The Office of Professional Standards was notified of Captain Murphy’s March 3, 2025 correspondence to Deputy Chief Hoar on or about March 7, 2025. (Resp. Exhibit 3; Testimony of Mendes)
  9. On March 7, 2025, the Appellant again called out sick and notified the FRPD Watch Commander that he wanted to transition to extended paid sick leave, which the FRPD refers to as “C-Watch.” (Resp. Exhibit 3; Testimony of Mendes)
  10. The Office of Professional Standards contacted the Union President on March 7, 2025 to inquire about the Appellant’s well-being. The Union President informed the Office of Professional Standards that the Appellant was going through a difficult time and sought to transition to C-Watch. (Resp. Exhibit 3; Testimony of Mendes)
  11. The Appellant was placed on C-Watch on March 7, 2025, as a result of: (1) his self-report that he was seeking extended paid sick leave; (2) the Union President’s communication that the Appellant was going through a difficult time and wanted to transition to C-Watch; and (3) Captain David Murphy’s concern, noted in his March 3, 2025 correspondence, that the Appellant was “showing a downward spiral of attendance.” (Resp. Exhibit 3; Testimony of Mendes; Testimony of Furtado)
  12. As an FRPD police officer placed on C-Watch, the Appellant was required to comply with the provisions of the “Sick Leave Confinement” provision of the FRPD Leave Benefit Programs Policy. (App. Exhibit 2.7; Resp. Exhibit 10; Testimony of Chief Furtado)
  13. When placed on C-Watch, on March 7, 2025, the Appellant was also ordered by Chief Furtado to undergo an independent fitness for duty examination, arranged by the FRPD and scheduled for March 13, 2025. (App. Exhibit 2.2; Resp. Exhibit 3; Testimony of Chief Furtado; Testimony of Mendes).
  14. On March 10, 2025, the FRPD was notified by the Tiverton Police Department of an incident, the night prior, between the Appellant and his live-in girlfriend. The family of the Appellant’s girlfriend also expressed concerns to the Tiverton Police Department about the Appellant’s mental health and well-being given his substance use history. Sergeant Adam Talbot of the FRPD subsequently conducted interviews of the Appellant’s girlfriend, her sister and her mother. (App. Exhibit 2.3; App. Exhibit 2.4; App. Exhibit 2.5; App. Exhibit 2.6; App. Exhibit 3; Testimony of Mendes)
  15. Lieutenant Mendes called the Appellant on March 10, 2025 to inform him that he and Sergeant Talbot were coming to his residence for a welfare check and to retrieve his department-issued firearm. The Appellant attempted to evade this visit by stating that his girlfriend was on her way home and they had plans to go out that evening. The FRPD found this to be untruthful since the Appellant’s girlfriend had informed them that she was working until 11 PM. (Resp. Exhibit 3; Testimony of Mendes)
  16. When Lieutenant Mendes and Sergeant Talbot met the Appellant at his residence on March 10, 2025, the Appellant informed them that he was “not feeling himself.” Lieutenant Mendes opined that the Appellant was “exhibiting signs and characteristics consistent with substance use and residual anxiety.” His firearms were collected by the FRPD. (Resp. Exhibit 3; Resp. Exhibit 6; Testimony of Mendes)
  17. Sergeant Talbot completed an Incident Report regarding the allegations made by the Appellant’s girlfriend and her family members but determined that there was not a need for any criminal application. (Resp. Exhibit 6; Testimony of Mendes)
  18. On March 13, 2025, the Appellant underwent a fitness-for-duty evaluation  completed by a licensed psychologist. The Appellant’s self-report to the psychologist was that he had used cocaine 10 times, with the last two times occurring in 2023. The psychologist noted that he had concerns that the Appellant was under-reporting his drug use, given other alleged omissions in the Appellant’s self-report. The psychologist’s report concluded that the Appellant was “unqualified to work as a police officer due to concerns around his self-report, and problems related to substance misuse.” The psychologist recommended a 14-day psychiatric inpatient stay with detox at a specifically identified program, followed by another fitness-for-duty evaluation. The psychologist also recommended ongoing random and regular drug testing. (Resp. Exhibit 5; App. Exhibit 2.7)
  19. On Friday, March 14, 2025, the Office of Professional Standards coordinated with John Ferrara, Union President, to inform the Appellant that, by order of Chief Furtado, a 14-day inpatient stay was set up for him, beginning on that day. (Resp. Exhibit 3; Testimony of Mendes)
  20. Chief Furtado made this decision because of the conclusions and recommendations of the psychologist who completed the fitness-for-duty examination. Chief Furtado had not made a decision to terminate the Appellant at that time, and her focus then was on getting the Appellant help. (Testimony of Furtado)
  21. On March 14, 2025, the Appellant informed the Office of Professional Standards, through the Union President, that he did not want to go to the selected inpatient program because he previously had a negative experience there. The FRPD gave the Appellant a grace period for the weekend, and he was told that on Monday, March 17, 2025, he must either report to the selected program or present an acceptable alternative. (Resp. Exhibit 3; Testimony of Mendes)
  22. The Union President then contacted Lieutenant Mendes later on the evening of March 14, 2025, and informed him that the Appellant was contesting the findings of the fitness-for-duty examination, and that the Appellant wanted to postpone treatment until after his return from a planned trip to Florida to coach a baseball game. (Resp. Exhibit 3; Testimony of Mendes)
  23. Lieutenant Mendes informed the Appellant, through the Union President, that he would need authorization for this travel from Chief Furtado, because a trip to Florida was not one of the nine enumerated reasons an officer could leave their residence during Sick Leave Confinement. (Testimony of Mendes)
  24. Chief Furtado did not authorize the Appellant’s travel to Florida. (Testimony of Chief Furtado)
  25. Lieutenant Mendes told the Union President that the Appellant’s failure to report for inpatient treatment on March 17, 2025, would constitute insubordination. (Resp. Exhibit 3; Testimony of Mendes)
  26. Subsequently, on Monday, March 17, 2025, the Union President informed the FRPD that the Appellant was invoking his CBA “right” to obtain a third-party medical opinion and that he would not enter any rehabilitation program on that day. (Resp. Exhibit 3; Testimony of Mendes)
  27. The right to request an independent third-party medical opinion is contained in CBA Article IX, Sections 2 through 4, “Injured on Duty”.  The FRFD applies that provision only to officers who are injured on duty and only after the employee’s physician and the employer’s medical examiner have conducted examinations reached different opinions as to the employee’s fitness for duty. [4] (App. Exhibit 1; Resp. Exhibit 19;  Testimony of Chief Furtado &  Mendes)
  28. An attempt was made to locate the Appellant at his residence on March 17, 2025, but he was not home. The FRPD reached the Appellant by phone on March 18, 2025 and learned then that the Appellant had gone to Florida to coach a college baseball game, and that he would not be returning until March 24, 2025. (Resp. Exhibit 3; Testimony of Mendes)
  29. Neither Chief Furtado nor the FRPD had approved the Appellant’s trip to Florida. The Appellant’s out-of-state trip does not fall under one of the nine reasons, set out in the FRPD Leave Benefits Program Policy, for which an officer on sick leave confinement may leave their residence. (Resp. Exhibit 10; Testimony of Chief Furtado)
  30. Chief Furtado ordered the Appellant to report to the Office of Professional Standards on Tuesday, March 18, 2025, because he had refused her order to enter a rehabilitation program following the fitness-for-duty evaluation, and he had left his residence for Florida without authorization while on Sick Leave Confinement. Chief Furtado’s order was repeatedly conveyed to the Appellant by telephone every day that he remained in Florida. (Testimony of Chief Furtado)
  31. Chief Furtado determined that the Appellant should be given a reasonable suspicion drug test upon his return from Florida, pursuant to Article XXV of the CBA. In accordance with the CBA, a review committee was formed to determine if reasonable suspicion existed, and the committee concluded that there was reasonable suspicion to proceed with the testing of the Appellant. The appropriateness of this review process was not challenged at the hearing in this matter. (Resp. Exhibit 11; Resp. Exhibit 19; Testimony of Mendes)
  32. The review committee found reasonable suspicion based on Captain Murphy’s letter to the Office of Professional Standards indicating that the Appellant was “spiraling,” the Appellant’s communication that he needed to be transferred to C-Watch due to his mental health, the findings of the fitness-for-duty evaluation, including the Appellant’s self-reported history of substance use, and the Appellant’s travel to Florida without authorization. (Testimony of Mendes)
  33. The Appellant remained in Florida and did not comply with Chief Furtado’s orders to report to the Office of Professional Standards until March 24, 2025. (Resp. Exhibit 3; Testimony of Chief Furtado)
  34. Chief Furtado decided, prior to the administration of this reasonable suspicion drug test, that she would proceed with termination of the Appellant’s employment if he failed the drug test, and she orally relayed this decision to the Office of Professional Standards prior to the Appellant’s drug test. (Testimony of Chief Furtado)
  35. Per FRPD order, the Appellant underwent drug testing by urinalysis at Southcoast Occupational Health on March 24, 2025. (Resp. Exhibit 7)
  36. The Appellant independently met with a mental health professional on March 26, 2025 and, at that time, he self-reported that he uses cocaine socially on weekends and last used cocaine one month prior. (Resp. Exhibit 6)
  37. The result of the FRPD-ordered urinalysis sample taken from the Appellant on March 24, 2025 was reported on April 2, 2025 as positive for cocaine. The accuracy of the test was not challenged at this hearing. (Resp. Exhibit 7; App. Exhibit 2.10)
  38. The results of the March 24, 2025 urinalysis constituted the Appellant’s second positive FRPD drug test during his FRPD employment. (Resp. Exhibit 7; App. Exhibit 2.10)
  39. Chief Furtado was informed on the afternoon of Friday, April 4, 2025, at approximately 2:00 PM, that the Appellant tested positive for cocaine. (Testimony of Chief Furtado)
  40. Upon her receipt of the Appellant’s second positive drug test, Chief Furtado notified the Office of Professional Standards that she would contact Human Resources on Monday, April 7, 2025, to initiate the Appellant’s termination of employment. (Testimony of Chief Furtado)
  41. On the night of April 4, 2025, at approximately 10:40 PM, the Appellant was arrested by the Boston Police Department.  He was charged with, among other crimes, Possession with Intent to Distribute a Class B Drug to Wit: Cocaine.  (App. Exhibit 2.11; Resp. Exhibit 3)
  42. On April 12, 2025, the Appellant’s law enforcement certification was suspended by the Peace Officer Standards and Training Commission (POST) based on POST’s determination that there was sufficient evidence that the Appellant had been arrested, charged, and/or indicted for a felony offense. (App. Exhibit 2.12).
  43. At the time of his arrest, the Boston Police Department seized four quantities of white powder which were submitted to the Massachusetts State Police Forensic Services Division Crime Laboratory on May 13, 2025 for testing. On June 16, 2025, a Massachusetts State Police Forensic Scientist at the Crime Laboratory reported two of the four quantities (weighing 3.47 grams and 0.04 grams) had been tested and found to contain cocaine, a Class B controlled substance. (Resp. Exhibit 25)
  44. Chief Furtado first learned of the Appellant’s arrest and the criminal charges on Saturday, April 5, 2025. (Testimony of Chief Furtado).
  45. An internal affairs investigation regarding the Appellant’s “conduct, fitness for duty, and compliance with agency policies,” was conducted by Lieutenant Matthew Mendes, Office of Professional Standards, who has approximately 20 years of experience with the FRPD. The Appellant did not appear for his scheduled interview for this investigation. (Resp. Exhibit 3; Testimony of Mendes)
  46. At some point during this investigation, the Office of Professional Standards was informed that the Appellant’s girlfriend reported that the Appellant had also traveled away from his residence on March 8 – 9, 2025, to coach a college baseball game. (Resp. Exhibit 3; Testimony of Mendes)
  47. This travel was not authorized by Chief Furtado, and it occurred while the Appellant was on Sick Leave Confinement. (Resp. Exhibit 10; Testimony of Mendes; Testimony of Chief Furtado)
  48. A Notice of Investigation and Disposition was sent by the Office of Professional Standards to Chief Furtado on or about April 28, 2025. (Resp. Exhibit 3; Testimony of Mendes).

Appellant’s Prior Discipline

  1. The Appellant has been disciplined twice for violating FRPD Rules and Regulations, Section 8.11, “Conduct Toward Associates.” (App. Exhibit 2.13; Resp. Exhibit 3; Resp. Exhibit 16; Resp. Exhibit 17; Testimony of Mendes; Testimony of Chief Furtado)
  2. On October 21, 2022, the Office of Professional Standards sustained a finding, following investigation, that the Appellant had violated FRPD Rules and Regulations, Section 8.11, “Conduct Toward Associates.” The investigation included a finding that: “The manner in which Officer Walsh communicated with [another police officer] in various messages did not exhibit respect and courteousness. While Officers are not prohibited from engaging in consensual intimate relationships with one another, it is important to heed their responses. [The other police officer] repeatedly declined Officer Walsh’s requests to have sexual encounters, routinely ignored his repeated messages requesting to meet with her, and/or told her that when he drinks, he becomes a different person.” (App. Exhibit 2.13; Resp. Exhibit 16)
  3. The Appellant received a Written Remand, dated March 15, 2023, for this violation. (Resp. Exhibit 17)
  4. On October 23, 2024, following another investigation, the Office of Professional Standards sustained a finding that the Appellant had again violated FRPD Rules and Regulations, Section 8.11, “Conduct Toward Associates.” This investigation stemmed from a complaint filed by a different police officer than the 2022 complaint. (Resp. Exhibit 23).
  5. The Appellant’s second sustained violation of the FRPD “Conduct Toward Associates” regulation resulted in a Negotiated Disciplinary Agreement. The Appellant acknowledged that he violated FRPD Rules and Regulations, Section 8.11, “Conduct Toward Associates.” The Appellant admitted that he sent repeated text messages and made repeated telephone calls to another police officer while she was working, and then, despite being told by his Union representative that that police officer had expressed concerns about his interactions, and after being advised to communicate with that police officer regarding work issues only, the Appellant continued to send her text messages, including requests to socialize after work. (Resp. Exhibit 24; App. Exhibit 2.16)
  6. The discipline for this 2024 violation included: a one-day suspension; monthly verification from the Appellant’s clinician that he was continuing to seek assistance for the issues which led to the violations, for one year; and an agreement to prospectively refrain from any unprofessional communications with any member of the FRPD. (Resp. Exhibit 24; App. Exhibit 2.16)

Appellant’s Termination

  1. The Appellant was provided with a Notice of Contemplated Termination, dated May 1, 2025, and a Notice of Rescheduled Contemplated Termination, dated May 6, 2025. (Resp. Exhibit 2)
  2. The alleged violations giving rise to the Notice of Contemplated Termination were: Conduct Unbecoming, Article 8.01; Physical Fitness for Duty, Section 9.10; Insubordination, Section 8.06; Sick Leave, Section 8.24; Absence from Duty, Section 9.08; Obedience to Laws and Regulations, Section 8.09; Leave Benefit Programs, CO3-14; Secondary Outside Employment, CO3-21. The Appellant’s prior misconduct (two prior incidents of violating Section 8.11 Conduct Towards Associates and one prior incident of testing positive for cocaine) was also referenced in the Notice of Contemplated Termination. (Resp. Exhibit 1)
  3. The Appellant’s City of Fall River Appointing Authority hearing was held before Hearing Officer Gary P. Howayeck, Esq., on May 9, 2025. (Resp. Exhibit 2).
  4. The Appellant did not testify at the Appointing Authority hearing. (Resp. Exhibit 2)
  5. The Hearing Officer issued a decision, dated May 20, 2025, finding that the City had just cause to terminate the Appellant. (Resp. Exhibit 2)
  6. The Hearing Officer referenced the Appellant’s two positive drug tests, in 2023 and 2025, as providing just cause for his termination. The decision refers to the CBA provision that permits the FRPD to discharge an officer who tests positive a second time following rehabilitation, and states: “The illegal use of drugs constitutes substantial misconduct which harms the public interest when engaged in by any public employee, but it is especially damaging to the public interest when engaged in by police officers.” (Resp. Exhibit 2)
  7. The Hearing Officer further found that the Appellant violated the FRPD Leave Benefit Programs Policy because he left his residence for a trip to Florida while on C-Watch, without authorization from the Chief of Police. (Resp. Exhibit 2).
  8. The Hearing Officer also found that the Appellant engaged in insubordination, by failing to report to a rehabilitation center as ordered by the Chief of Police, and instead remaining in Florida, without authorization, for a week while on C-Watch. (Resp. Exhibit 2)
  9. The Hearing Officer considered the Appellant’s “multiple policy violations and insubordination,” in concert with his disciplinary history (one written reprimand and a one-day suspension plus counseling, for two separate violations of the FRPD “Conduct Toward Associates” policy). The Hearing Officer concluded that “the City is justified in pursuing more serious forms of discipline, including termination,” noting that a city “need not retain an officer who has repeatedly violated its policies. Repeated violations of department policy can seriously harm the efficacy of a public service by inhibiting the City from controlling its employees.” (Resp. Exhibit 2)
  10. The Hearing Officer also referenced the alleged facts underlying the Appellant’s April 4, 2025 arrest, the POST suspension order and his prior discipline as providing further just cause to terminate the Appellant. The Hearing Officer concluded that the facts within the police report constitute “sufficiently reliable evidence for the purpose of rendering a decision in this context.” (Resp. Exhibit 2)
  11. A Notice of Termination was sent to the Appellant by Chief Furtado on May 21, 2025. This correspondence references and incorporates the Hearing Officer’s decision, and concludes that the Appellant violated City and FRPD policy, the CBA, and applicable law, due to his second positive drug test on March 24, 2025; insubordination and policy violation by his unauthorized travel to Florida while on C-Watch when he had been ordered to enter a treatment program; his arrest on April 4, 2025 and resulting POST suspension order; as well as his prior discipline. (Resp. Exhibit 18)
  12. The Appellant appealed this termination decision to the Civil Service Commission on June 5, 2025. (Stipulated Facts)

Applicable Civil Service Law

A tenured civil service employee may be disciplined for “just cause” after due notice and hearing upon written decision “which shall state fully and specifically the reasons therefor.” G.L. c. 31, § 41. An employee aggrieved by the decision may appeal to the Commission. G.L. c. 31, § 43. Under section 43, the appointing authority carries the burden to prove “just cause” for the action taken by a “preponderance of the evidence.” Id. See, e.g., Falmouth v. Civ. Serv. Comm’n, 447 Mass. 814, 823 (2006); Police Dep’t of Boston v. Collins, 48 Mass. App. Ct. 411, rev. den., 726 N.E.2d 417 (2000).

In performing its review, the Commission hears evidence and finds facts anew. Examining an earlier but substantially similar version of the same statute, the Appeals Court wrote:

We interpret this as providing for a hearing de novo upon all material evidence and a decision by the commission upon that evidence and not merely for a review of the previous hearing held before the appointing officer. There is no limitation of the evidence to that which was before the appointing officer.

Leominster v. Stratton, 58 Mass. App. Ct. 726, 727-28 (2003).

The Commission determines just cause 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. Civ. Serv. Comm’n, 43 Mass. App. Ct. 486, 488, rev. den., 426 Mass. 1104 (1997). See also Doherty v. Civil Serv. Comm’n, 486 Mass. 487, 493 (2020). It is also a basic tenet of merit principles, which are the core protections of civil service law, that discipline must be remedial, not punitive, designed to “correct inadequate performance” and “[only] separating employees whose inadequate performance cannot be corrected.” G.L. c. 31, § 1. The Commission must take account of all credible evidence in the entire administrative record, when weighed by an unprejudiced mind, guided by common sense and by correct rules of law, including whatever would fairly detract from the weight of any particular supporting evidence. See Comm’rs of Civ. Serv. v. Municipal Ct. of Boston, 359 Mass. 211, 214 (1971), citing Selectmen of Wakefield v. Judge of First Dist. Ct., 262 Mass. 477, 482 (1928); Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 264-65 (2001). It is the purview of the hearing officer to determine credibility of testimony presented to the Commission. “[T]he assessing of the credibility of witnesses is a preserve of the [commission] upon which a court conducting judicial review treads with great reluctance.” Leominster v. Stratton, 58 Mass. App. Ct. at 729. See Embers of Salisbury, Inc. v. Alcoholic Beverages Control Comm’n, 401 Mass. 526, 529 (1988); Doherty v. Retirement Bd. of Medford, 425 Mass. 130, 141 (1997).

Section 43 of G.L. c. 31 also vests the Commission with the authority to affirm, vacate or modify a penalty imposed by the appointing authority. The Commission is delegated “considerable discretion” in this regard, albeit “not without bounds” so long as the Commission provides a rational explanation for how it has arrived at its decision to do so. See, e.g., Police Comm’r v. Civ. Serv. Comm’n, 39 Mass. App. Ct. 594, 600 (1996) and cases cited; Falmouth v. Civ. Serv. Comm’n, 61 Mass. App. Ct. 796, 800 (2004); Faria v. Third Bristol Div., 14 Mass. App. Ct. 985, 987 (1982) (remanded for findings to support modification). However, 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.  A tenured civil service employee may be terminated for “just cause” after due notice and hearing upon written decision “which shall state fully and specifically the reasons therefor.” G.L. c. 31, § 41.

By virtue of the powers conferred by their office, police officers are held to a high standard of conduct. Zorzi v. Town of Norwood, 29 MCSR 189 (2016). An officer of the law carries the burden of being expected to comport himself or herself in “an exemplary fashion.” McIsaac v. Civil Service Comm’n, 38 Mass. App. Ct. 473, 475 (1995). 

As the Massachusetts Appeals Court has stated:

“Police officers must comport themselves in accordance with the laws that they are sworn to enforce and behave in a manner that brings honor and respect for rather than public distrust of law enforcement personnel. They are required to do more than refrain from indictable conduct. Police officers are not drafted into public service; rather they compete for their positions. In accepting employment by the public, they implicitly agree that they will not engage in conduct which calls into question their ability and fitness to perform their official responsibilities.”

Police Commissioner of Boston v. Civil Service Comm’n, 22 Mass. App. Ct. 364, 371, rev. den. 398 Mass. 1103 (1986).

Analysis

The City has shown, by a preponderance of the evidence, that it hadjust cause to terminate the Appellant. There are two distinct grounds for the Appellant’s termination, each of which, on its own, when viewed in conjunction with the Appellant’s considerable disciplinary history within his brief employment of just four years, constitute just cause for the Appellant’s termination. [5] The two distinct grounds are: (1) repeated use of illegal drugs – cocaine; and (2) insubordination and violation of the FRPD Leave Benefit Programs Policy and the CBA, by traveling to Florida to coach a college baseball team while he was on Sick Leave Confinement, without authorization from the Chief of Police, and by refusing repeated orders from the Chief of Police to report to a rehabilitation facility following a fitness-for-duty evaluation that concluded the Appellant was “unqualified to work as a police officer due concerns around his self-report, and problems related to substance misuse.”

As a preliminary matter, I find that the internal investigation into the Appellant’s alleged conduct, piloted by Lieutenant Mendes of the Office of Professional Standards, a twenty-year officer of the FRPD, was comprehensive and credible. Specifically, the relevant information relayed in the final April 28, 2025 investigation report was supported at hearing by consistent testimony from Lieutenant Mendes and Chief of Police Kelly Furtado, and by relevant supporting documents. Further, the Appellant did not testify at his Appointing Authority hearing or at the Commission hearing; none of the relevant supporting documents was contested by the Appellant as to its accuracy or authenticity. Accordingly, an adverse inference is drawn that his truthful testimony on either of the two grounds on which this Decision upholds his termination would not have been favorable to him.

Repeated Use of Illegal Drugs - Cocaine

First, it is undisputed that the Appellant tested positive for cocaine twice during his four-year employment as a FRPD officer. This case is wholly distinguishable from prior Commission decisions in which the accuracy and reliability of an employer drug test (from a hair sample) was challenged by the public employee. The Appellant in this case did not challenge the accuracy of his FRPD urine sample drug tests either when he received the positive results, or at any time thereafter. Indeed, documentary evidence demonstrates the Appellant has admitted cocaine use to two mental health professionals.

Second, the CBA specifically authorizes termination of an employee after a second positive drug test. While an employee is protected from discipline after an initial positive drug test (with exceptions for on-the-job use), so that they have an opportunity to receive rehabilitation and preserve their employment, this protection ends when an employee tests positive a second time. A termination after a second positive drug test is not only consistent with the CBA, it is also entirely reasonable given the fact that the FRPD and the City must reasonably prioritize the safety of the public, the public trust, and the City’s potential liability when faced with evidence of repeated substance misuse by an officer.

Third, not only did the Appellant test positive for cocaine use on two occasions, these two occasions were not far apart in time. After being provided an opportunity to engage in inpatient rehabilitation following his August 9, 2023 positive drug test, the Appellant tested positive again on April 2, 2025, approximately one and a half years after completing the rehabilitation program and after asserting (falsely) that he had not used cocaine for a month or more prior. 

Fourth, on April 4, 2025, the uncontested evidence showed that the Appellant was found to be in possession of 3.5 grams of cocaine.  I draw no inference as to the merits of any of the criminal charges or the Appellant’s alleged criminal intent surrounding the April 4, 2025 incident. However, the Appellant’s possession of cocaine only two days after his second positive drug test for cocaine does warrant, at the least, an inference that confirms the Appellant’s continued habitual drug use.

Insubordination and Violation of Leave Benefit Programs Policy and CBA

I also find that the City had independent justification to terminate the Appellant’s employment due to his unauthorized travel to Florida to coach a baseball team while on Sick Leave Confinement and while under orders from the Chief of Police to report to a rehabilitation program (again viewed in concert with his disciplinary history).

It was not disputed that the Appellant was placed on C-Watch status beginning on March 7, 2025 or that he went to Florida to coach a baseball team while on C-Watch. It is worth highlighting the catalyst for the Appellant’s placement on C-Watch. Not only was there a documented concern by the Appellant’s Division Commander about the Appellant’s well-being, but the Appellant himself requested to be put on this status.

It was not disputed that while he was on C-Watch, the Appellant was bound by the requirements of the Sick Leave Confinement provision of the FRPD Leave Benefits Program Policy. According to this provision, when an officer is on paid sick leave for a non-work- related injury, they are restricted in their freedom to leave their residence. There are nine enumerated reasons for which an officer may request permission to leave their residence for typical needs, such as to vote, purchase food, attend a scheduled medical appointment, etc.  A trip to Florida to coach a baseball team does not fall within any of the nine enumerated reasons.

It is also clear from this policy and the testimony of Chief Furtado and Lieutenant Mendes that a process exists for an officer to request to leave their residence for a reason not on the enumerated list. Only the Chief of Police may provide authorization to this type of request. Chief Furtado and Lieutenant Mendes both credibly testified that the Appellant was not given authorization by Chief Furtado to travel to Florida while he was on Sick Leave Confinement.

The Appellant acknowledged in a March 18, 2025 phone call with the FRPD that he was in Florida and that he would not be returning until March 24, 2025. I find that the City established by a preponderance of the evidence that the Appellant violated FRPD policy because he took this trip to Florida, while on Sick Leave Confinement and without authorization from the Chief of Police.

Evidence of the Appellant’s insubordination stems from this same period. The Appellant was ordered by the Chief of Police to enter a selected inpatient treatment program or present an alternative acceptable program to the FRPD by March 17, 2024, and he refused to do either. The Chief of Police issued this order due to the Appellant’s placement on C-Watch coupled with a documented recommendation from the psychologist who conducted the Appellant’s March 13, 2025 fitness-for-duty evaluation. The psychologist concluded that the Appellant was then “unqualified” to work as a police officer and recommended he attend a 14-day inpatient treatment program with a detox component.

Evidence of the Appellant’s insubordination was produced at hearing through credible testimony. Specifically, Chief Furtado credibly testified as to when, why and how she ordered the Appellant to enter into an inpatient treatment program, and Lieutenant Mendes credibly testified that the Appellant, through the Union President, first sought to delay the start of inpatient treatment, and then altogether refused to attend inpatient treatment or present an alternative after being given the weekend as a grace period. Additionally, I credit Chief Furtado’s testimony, that upon learning that the Appellant had left the state for Florida, she gave ongoing daily orders, by phone while he remained in Florida, for the Appellant to immediately report to the Office of Professional Standards. Chief Furtado and Lieutenant Mendes testified that the Appellant did not comply with these repeated orders and remained in Florida. Documentary evidence shows that the Appellant reported to the FRPD on his own timeframe, on March 24, 2025, after his week of baseball coaching in Florida. I find that there was a preponderance of evidence that the Appellant blatantly and repeatedly disregarded clear and reasonable orders of the Chief of Police, and that this conduct constitutes insubordination.

The Appellant’s conduct in taking an unauthorized trip to Florida while on Sick Leave Confinement, coupled with his ongoing defiance of the Chief of Police’s orders: (1) initially, to report to a rehabilitation facility or present a reasonable alternative by March 17, 2025, and (2) subsequently , to report to the Office of Professional Standards on each day that he remained in Florida, are serious violations showing a blatant disregard of the authority of the leadership of the FRPD and the controlling import of the FRPD policies that govern the Appellant’s employment.

Modification of Penalty

Finally, although my conclusions rest on findings that the City established just cause to terminate the Appellant for two of the three reasons (but not the merits of the alleged criminal misconduct that occurred on April 4, 2025) that the City asserted in its Notice of Termination, I must address the issue of modification of the penalty.  I conclude that this appeal does not warrant the exercise of the Commission’s discretion to modify discipline of termination imposed by the City.

First, I am persuaded by the credible testimony of Chief Furtado that she had decided to initiate termination proceedings against the Appellant before she learned, on April 5, 2025, of his arrest the night prior. I also credit the testimony by Chief Furtado that, while the Appellant was still in Florida without authorization, she ordered that the Appellant undergo a reasonable suspicion drug test immediately upon his return. She communicated to the Office of Professional Standards that she would terminate the Appellant if his drug test was positive. I am also persuaded that Chief Furtado was truthful in her testimony that she informed the Office of Professional Standards, on the afternoon of Friday, April 4, 2025 after learning of the Appellant’s positive drug test around 2:00 PM, that she would contact Human Resources that following Monday to initiate the Appellant’s termination.

Second, I have considered the Appellant’s argument that his prior discipline did not rise to the level that justified termination as a matter of progressive discipline.  The misconduct for which the Appellant had been previously disciplined, at least on the record presented to the Commission, involved a pattern of inappropriate interactions and unwanted advances toward other FRPD personnel on multiple occasions from 2022 to 2024. Although that misconduct did not specifically involve illegal drug use or insubordination, it similarly demonstrated a disregard for the high standard of conduct which calls into question his ability and fitness to perform his official responsibilities.  The prior discipline was fair warning that the Appellant needed to take responsibility for his disrespectful and inappropriate actions and show significant improvement, not a deterioration, in his behavior.

Third, as discussed above, the Appellant’s repeated use of cocaine, standing alone, is sufficient grounds to question his ability and fitness to perform his essential duties, as well as his ability to uphold the law. Similarly, the Appellant’s persistence in repeated violation of FRPD policies and orders of the Chief of Police are behaviors that the FRPD may rightly refuse to tolerate in any police officer. 

In summary, the City had just cause to terminate the Appellant based on the uncontroverted evidence of his habitual cocaine use, his violations of FRPD policy and his repeated disrespect and insubordination toward his peers and his superiors.

Conclusion

For all  the above reasons, the Appellant’s appeal under Docket D1-25-131 is denied.

Civil Service Commission

/s/ Paul M. Stein   

Commissioner

By vote of the Civil Service Commission (Bowman, Chair, Dooley, Markey, McConney, and Stein Commissioners) on March 5, 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 CMR 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).

[1] The Commission follows the Standard Adjudicatory Rules of Practice and Procedure, 801 CMR §§1.00, et seq., in its adjudicatory proceedings, with Chapter 31’s provisions or any rules promulgated thereunder taking precedence.

[2] If there is a judicial appeal of this decision, the plaintiff in the judicial appeal is obligated to use the recording to provide an accurate transcript, satisfactory to the court, to the extent that they wish to challenge the decision as unsupported by the substantial evidence, arbitrary and capricious, or an abuse of discretion.

[3] App.Exh.2 is comprised of the 17 exhibits that were attached to and referenced within the Office of Professional Standards’ April 28, 2025 Notice of Investigation and Disposition IIC2025-018. For clarity, these 17 exhibits are cited in this Decision as App. Exhibit 2.1; App. Exhibit 2.2; etc. I note that the text of the Office of Professional Standards’ April 28, 2025 Notice of Investigation and Disposition IIC2025-018, without the 17 exhibits referenced within it, has also been entered into evidence, and is cited herein as Resp. Exhibit 3.

[4] No evidence was submitted to the Commission suggesting that the Union filed a grievance or otherwise challenged the FRFD’s interpretation of Article IX of the CBA.

[5] The Commission deferred hearing evidence concerning the third reason provided by the City as “just cause” for the termination of the Appellant – his April 4, 2025 arrest and pending criminal felony charges – due to complications connected to the introduction of evidence and appearance of witnesses with knowledge of the facts and defenses to those charges.  As this Decision concludes that the two other reasons for termination, individually and independent of the alleged criminal offenses, provide just cause for the Appellant’s termination, the Commission has no reason to conduct further hearings on those issues and this Commission Decision does not reach any conclusions about the merits of the criminal charges, save for the undisputed results of the Massachusetts State Police Crime Laboratory test that confirmed the Appellant had at least 3.5 grams of cocaine in his possession on April 4, 2025, as stated in Finding No. 56 above. 

Notice to:

Alan H. Shapiro, Esq. (for Appellant)

Jennifer A. Benjamin, Esq. (for Respondent)

Gary P. Howayeck, Esq. (for Respondent)

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