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Arbitrator orders Newton to reinstate fired police chief, give him back pay

Posted by Evan Allen  October 11, 2013 07:33 PM

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An arbitrator has ordered the city of Newton to reinstate Matthew Cummings as police chief, saying Cummings did not engage in “conduct unbecoming,” as Mayor Setti Warren cited when firing him a year ago.

The ruling Thursday awards Cummings back pay, minus any unemployment benefits or interim earnings — which his lawyer said could cost the city up to $34,000.

“Today, I feel pretty good, I feel vindicated,” Cummings said Friday. “But over the last year, I felt like people were just throwing mud everywhere, and none of it was truthful.”

Cummings was dismissed after a report conducted by an outside investigator found that he had displayed “boorish” behavior to female employees, kicking and swearing at police secretary Jeanne Sweeney Mooney and calling a pregnant police officer “fat.”

Arbitrator Michael W. Stutz disputed the report’s findings, however, and concluded that the city violated his contract by firing him.

City solicitor Donnalyn B. Lynch Kahn said that regardless of the arbitrator’s decision, Cummings will not be reinstated.

Though he was originally fired by Warren on Oct. 11, 2012, the city terminated Cummings again on Sept. 16 of this year under a different portion of his contract that allows for termination without cause in the fifth year, she said.

“The arbitrator can order him back, but there’s no job to go back to,” said Kahn.

But Cummings’s lawyer, Timothy M. Burke, challenged that interpretation and said Cummings should be allowed to serve out his full contract until it expires in January.

“We plan to enforce this in a legal proceeding,” said Burke, who said he will seek a court injunction compelling the city to reinstate his client “as soon as humanly possible.”

Cummings had been chief since 2009, but was with the department for more than 30 years. He earned a salary of $168,737 in the year before he was fired.

Kahn said that Cummings has been receiving 80 percent of that salary as retirement pay, and Cummings said he has also been working with a police management software company. Kahn said that those earnings could reduce the amount of back pay he is owed to zero.

She said the city has not yet decided whether to fight the arbitrator’s decision awarding back pay to Cummings.

“We’re still considering whether we’re going to file any motions or appeals on the decision itself,” said Kahn.

Warren declined to comment, directing questions to Kahn.

The complaints against Cummings surfaced after Mooney was accused of stealing $660 cash from the department and destroying nearly $1,500 in checks in September 2011 and placed on paid administrative leave. Mooney, who was acquitted of larceny charges in May, sued the city in federal and state court, saying she was set up on phony theft charges after clashing with Cummings. Mooney returned to work last month, but the suits are still pending.

The arbitration opinion describes the allegations against Cummings as “a credibility contest between two senior members of the Police Department.”

According to the investigator’s report, which was commissioned by the city, Cummings called Mooney a “bitch” and told her “I think you look like a whore” in 2010. He also kicked her in the foot, sending her high-healed shoe flying and causing a bloody cut on the back of her foot, the report said.

The following summer, according to the investigator’s report, Cummings said to a pregnant officer, “You’re almost as fat as I am.”

The arbitrator’s opinion, however, questioned the version of events presented in the report, and found that Cummings did not engage in “conduct unbecoming.” His record, the arbitrator said, was “impeccable.”

The arbitrator’s opinion states that tension within the department began when Cummings became chief in 2009 and put a stop to “improper” time and leave practices by some employees, including Mooney. The tension eased with time, according to the opinion, but flared up again in September 2011 with the theft charges against Mooney. Eight months later, she made her allegations against Cummings.

The kicking incident was an “awkward and unfortunate” bad joke, according to the arbitrator’s opinion, but “everyone agrees” Cummings had no bad intent.

The opinion calls Mooney’s allegations that Cummings swore at her to be “suspect,” saying that they were made only after she was under investigation for alleged theft, and were not corroborated by other witnesses.

Cummings did not intend to hurt the pregnant officer’s feelings when he commented on her body, the arbitrator wrote.

“What he found was, I wasn’t a bad guy,” said Cummings. “I was a good administrator, and I did my job.”

Mooney’s lawyer, John F. Tocci, said his client’s claims about her treatment by Cummings were supported by witnesses, but that ultimately he is focused on the larger injustice of the theft charge that was lodged against her.

The dispute over arbitration, he said, is not Mooney’s fight. “Jeanne doesn’t have a horse in that race,” he said.

Cummings said that the arbitrator’s decision came as a relief to him and his family, but that the city has made “quite a mess,” and he is still deciding whether he would return to work.

“I have to weigh my options,” he said. “I didn’t do this for the money. I did this because it was the right thing to do... I had to see this thing through.”

Evan Allen can be reached at evan.allen@globe.com

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