Town Solicitor David D’Agostino had just begun his closing argument in the trial of the Town of East Greenwich versus EG firefighters, explaining how Town Manager Gayle Corrigan had to be the one to terminate firefighter James Perry because Acting Fire Chief Tom Mears couldn’t recommend termination.
“As a matter of law and fact, he had no role and could have no role,” D’Agostino said of Mears.
“Why is that?” asked Superior Court Judge Susan E. McGuirl, interrupting D’Agostino for the first of many interruptions over the next hour, making D’Agostino’s closing argument more a conversation with the judge than the traditional declaration.
Mears was only the acting fire chief for operations, D’Agostino replied.
“You’ve kind of made up that title,” said McGuirl.
McGuirl presided over a five-day trial in September over the validity of Corrigan’s appointment as acting town manager and, later, as town manager, and whether or not the town lawfully terminated probationary firefighter James Perry in August.
D’Agostino said Corrigan effectively had the title of acting fire chief of administration, so it would be up to her in that capacity to recommend (or not) Perry’s termination.
McGuirl said there was nothing about dividing up the job on the agenda for the Aug. 19 meeting when Mears was named acting fire chief (Chief Russell McGillivray was out on medical leave). She asked what administrative duties Corrigan undertook in that role.
“The primary duty was to fire Mr. Perry?”
“Yes,” said D’Agostino.
“So, she agreed with herself to do this,” said McGuirl, referring to Gayle Corrigan in her stated capacity as fire chief of administration recommending to Town Manager Gayle Corrigan to fire Perry.
“It’s almost an absurd exercise,” said D’Agostino.
“I may have to agree with you on that,” replied the judge.
D’Agostino said the town’s primary argument about why Perry was fired came down to “whether the town as an employer can certify [Perry’s] qualifications without using hearsay.”
Perry had listed Firefighter 1 & 2 under “certifications” on his resume to become an EG firefighter in 2016. He had been a full-time firefighter in Coventry since 1999 and was a lieutenant at the time he left to work in East Greenwich. The town had argued that without actual paper Firefighter 1 & 2 certification, he was guilty of “material misrepresentation” and thus could be fired.
“We still lack the ability to independently verify Perry’s qualifications,” he said.
“I’ve conducted a five-day trial and now you’re saying I don’t have jurisdiction?’ Judge McGuirl responded. ‘Isn’t this a day late and a dollar short?’
Then D’Agostino shifted to a brand new argument – that the court lacks jurisdiction over these matters because the plaintiffs (James Perry and the EG firefighters union) do not have standing to bring suit.
“I’ve conducted a five-day trial and now you’re saying I don’t have jurisdiction?” McGuirl responded. “Isn’t this a day late and a dollar short?”
D’Agostino said he was raising the issue now because of he’d only recently learned that the Rhode Island Secretary of State had revoked the firefighter union’s corporate status in 2009.
“An unlicensed corporation cannot bring suit in its own name,” he said. In addition, D’Agostino argued, James Perry did not have standing on the Open Meetings Act complaints because he was not injured by what transpired at those meetings.
When D’Agostino circled back to the June 19 meeting during which the Town Council voted to approve former Town Manager Tom Coyle’s “separation” from the town and Corrigan’s appointment as acting town manager, the judge again took issue.
“You knew you would need a new town manager. Why wasn’t it on the agenda?” McGuirl said.
The only item on the agenda for June 19 was discussion of an unspecified personnel issue.
Corrigan had testified during the trial that she’d talked to Council President Sue Cienki about the position in advance of the June 19 meeting, the judge recalled. “Everybody knew what was happening. Why wasn’t that on the agenda?”
D’Agostino said it wasn’t on the agenda because the council wasn’t sure under what condition Coyle would be leaving – separation, resignation or termination – and when exactly those terms would be worked out.
The judge then asked why there was no record of the votes taken in that session.
“I’m at a little bit of a loss to address that,” conceded D’Agostino.
“Didn’t [Corrigan] have to be an official of the town?” McGuirl said. “How did you get around that?”
D’Agostino said the challenge was in identifying “an officer of the town.” Under the town code, he said, only two positions are identified as town officers: the town solicitor and the sealer of weights and measures. So, he said, the Town Council overrode the charter using its legislative powers imbued by the General Assembly.
But the judge wasn’t done with D’Agostino over votes taken by the Town Council in executive session.
“The town charter says you need to vote in public, right?” McGuirl said.
“I disagree that the charter says what the court says it means,” countered D’Agostino.
“Reporting the vote is the same as the vote itself – is that what you are saying?” said the judge.
“Yes,” said D’Agostino
McGuirl also asked why the Town Council’s vote on Corrigan’s contract July 24 could not be found on the public record.
“There’s no question the Town Council voted to approve a contract,” said D’Agostino.
“How do I know that you voted on the term sheet? I don’t have that anywhere here,” the judge said. “That’s [the town clerk’s] job to record the minutes and she was sent home.”
“We know exactly what took place at that meeting,” D’Agostino said.
“We don’t know that,” McGuirl responded.
In his final argument, D’Agostino said the plaintiff’s request to remove Corrigan and nullify all of her actions was “sweeping and unprecedented,” and as such should be discounted.
In her closing argument, lawyer for Perry and the firefighters union Elizabeth Weins said that the burden of proof when an employee is accused of misrepresentation falls to the employer, in this case the Town of East Greenwich.
“The question is not whether he can verify the standard. The question was, did [Perry] misrepresent himself? He did not,” said Weins.
“There was nothing close to just cause for termination,” she continued, saying that Corrigan did not reach out to anyone, including Perry, to discuss his certifications, before firing Perry. Weins said Corrigan had been opposed to so-called “lateral hires” like Perry from the outset, because she thought it favored white males. She may have a moral objection to hires made before she was hired, but that does not equal just cause, Weins said.
With regard to the Open Meetings Act complaints, Weins said the votes should be “at the very least” invalidated and that the Town Council “should not be allowed to just reappoint her.”
On the jurisdictional issues raised in D’Agostino’s closing argument, Weins said unions are not corporate entities but are created by state statute. She also said that Perry “clearly” had standing.
“I don’t know that there’s anyone else in town who was affected more than Mr. Perry,” Weins said.
At the end of the closing arguments, Judge McGuirl told the two sides they needed to submit their post-trial briefs by end of day Wednesday.
“We need to move on this case. There have been some serious allegations made,” the judge said.
– Elizabeth F. McNamara