By Bruno Matarazzo Jr.
MIDDLETON — Sheriff Frank Cousins defended his department's 2007 firing of two corrections officers who an arbitrator ruled Monday should get their jobs back.
And, so far, the dispute has cost the public more than $200,000.
The arbitrator, Boston attorney James Litton, ruled the Essex County Sheriff's Department took too long to fire guards union President Jerry Enos of Rockport and union treasurer and webmaster K. Ricky Thompson for allowing racially derogatory remarks about Cousins and his staff on the union's online message board.
"We (fired Enos and Thompson) based on two independent investigations. That's the proper way to handle something at this level," Cousins said. "When something's under investigation, there's a process that has to be followed."
The remark that started the move to fire Enos and Thompson was a 2005 online comment that James Earl Ray, the man who assassinated civil rights leader Martin Luther King Jr., could take care of the union's problems with Cousins, who is black.
That comment prompted the Sheriff's Department to ask the district attorney's office to investigate if any crimes were committed in the Web posting. The yearlong investigation netted charges against a jail guard, Scott Thompson, who was later fired and convicted of criminal threatening.
Cousins also filed a complaint with the state's Commission Against Discrimination, which took two years to find probable cause against the union, the Essex County Correctional Officers Association, specifically Enos, Thompson and two unnamed online commenters.
Less than two months after the commission's finding of probable cause, the Sheriff's Department fired Enos and Thompson.
However, the arbitrator ruled Monday that the long delay deprived Enos and Thompson "of their right to be disciplined in a timely manner."
As the arbitrator's decision moves to Superior Court for the appeal, the legal bills will continue to mount.
Cousins used his personal attorney to represent him during the district attorney's investigation and through the ongoing state discrimination investigation. A pretrial conference is scheduled for April.
Cousins said he paid his attorney with his own money, as well as tapping campaign funds.
But tax dollars were spent in the two-year arbitration process.
Cousins said the cost so far is slightly more than $200,000 in payments to the law firm of Murphy Hesse Toomey & Lehane. The department also had to pay $17,242 to the arbitrator, its half of the $34,484 bill. The guards union owes the other half.
The costs could increase if the Sheriff's Department's appeal fails, since Enos and Thompson are entitled to back wages, the arbitrator ruled.
The Democratic candidate for sheriff, Damian Anketell, criticized Cousins' handling of the firing of Enos and Thompson, and the subsequent cost to taxpayers.
"If Cousins handled the situation better, it would never have came out the way that it did," Anketell said.
Anketell, who worked at the Sheriff's Department until 2005, was around when the online message board was operational.
The message board "caused more problems, a lot of problems," Anketell said.
Cousins, a Republican, asks why Anketell didn't voice his opinion sooner, if he believed the guards' firing was handled improperly.
Cousins said three separate courts upheld the firings of other employees who wrote racially offensive e-mails and online comments.
In 1999, former jail guard Kevin O'Leary was fired from his position as a lieutenant for forwarding an e-mail that had a picture of Cousins' face and shoulders superimposed in the cross hairs of a rifle, accompanied by the words "Pull the trigger" and a rhyming racial epithet.
The U.S. District Court in Boston and the First Circuit Court of Appeals upheld O'Leary's firing.
In 2006, the Sheriff's Department fired Joseph Curran for writing, "You identify Hitler as the sheriff, the Jews as the correctional officers, the Nazi generals as the department's deputies and captains, and another group, including yourself as ones who may attack the Nazis."
Cousins said a judge in Haverhill District Court upheld the firing.
"They were very clear this type of behavior will not and cannot be tolerated in the work force — not just for myself but all employees that work here," Cousins said. "There cannot be racial hatred on that Web site."
Along with the employees, Cousins said 55 percent of the inmates at Middleton Jail are nonwhite.
The union, however, argued the 2007 firings were not for just cause, and that the department cannot discipline them for simply maintaining an online message board. Also, the arbitrator found Enos and Thompson's First Amendment rights are at issue, since the Web site and its message board is off-duty speech "made in the context of lawful union activity, as distinguished from being part of their official job duties."
While the pair authored certain comments on the message board, there is no record of any postings by either one that could be "independently disciplined," the arbitrator's report says.
