by Christopher H. Roberts

The city had until midnight Monday to decide whether or not to appeal a unanimous decision by the Massachusetts Civil Service Commission ordering the city to reinstate a former Somerville police officer fired by former mayor Dorothy A. Kelley Gay.

“Officer Alessandro Capobianco should be reinstated,” said Ward 7 Alderman Robert C. Trane. “He’s a good man and he was a good cop.”

The city had until midnight Monday to decide whether or not to appeal a unanimous decision by the Massachusetts Civil Service Commission ordering the city to reinstate a former Somerville police officer fired by former mayor Dorothy A. Kelley Gay.

“Officer Alessandro Capobianco should be reinstated,” said Ward 7 Alderman Robert C. Trane. “He’s a good man and he was a good cop.”

The Civil Service Commission voted 5-0 that the city acted wrongly in removing Alessandro Capobianco from the Somerville Police Department. The city has 10 business days from the date of the Commission’s decision to appeal, President of the Board of Aldermen Bruce A. Desmond said.

The city also has the option to appeal to Middlesex County Superior Court until June 30, he said.

Capobianco was removed from the Somerville Police Department in 2002
by Gay under allegations of drug abuse.  He was prescribed painkillers, including Oxycontin, after suffering a job-related injury. Capobianco is a close relative of Mayor Joseph A. Curtatone.

Curtatone has recused himself from the decision making process due to the familial ties, leaving Desmond to act in his stead, the mayor’s spokesman said.

“Alex was wronged and he deserves a second chance,” said Trane. “He was hurt on the job and unfortunately developed a problem.”

“We have procedures in place for city employees to receive treatment for their problems, should they arise. Those procedures were violated,” he said.

“That’s wrong,” Trane said.

“It’s purely a city personnel matter,” the mayor’s spokesman said. “It’s up to Bruce Desmond as President of the Board of Alderman to decide whether to appeal or not. He should make his decision in the next couple of days.”

“The city can appeal the decision if it is worth pursuing. If the city chooses to reinstate him, it would have to pay him back pay and restore him with full seniority,” the spokesman said.

The State Civil Service Commission unanimously voted that the city acted wrongly in firing Capobianco. Whether or not the city chooses to appeal that decision involves a weighing of interests, said Ward 4 Alderman candidate and law student Domingos R. Santos Jr.

“On the one hand is the cost of litigation.  On the other hand is the question if the city’s interest is harmed if the decision of the Civil Service Commission stands,” Santos said.

Whenever the city is confronted with a decision from a court or an agency, such as the Civil Service Commission, it first has to determine if that court or agency made the correct decision, Santos said.

That determination is the exclusive province of the city solicitor’s office, he said.

“Assuming that the solicitor finds that the commission did not make the correct decision, then the city will appeal,” Santos said.

But before doing so, the city will probably conduct two inquiries, he said.

First, under the assumption that the Civil Service Commission acted wrongly, the city will weigh the cost of litigation versus the harm relative to an allegation of drug abuse by a police officer and that police officer remaining on the force, he said.

“Second, the city will be weighing the cost of litigation versus the harm relative to allowing a decision based on incorrect legal principles or incorrectly applied legal principles to stand,” he said.

Desmond said that the city solicitor and Capobianco’s lawyers are currently in negotiation, which may also have an impact on the city’s decision to appeal. The city could also reach a financial settlement with Capobianco, whereby Capobianco would drop his request to return to work and the city would be saved the expense of mounting an appeal, a scenario Desmond refused to comment on.

An appeal to the Civil Service commission would probably result in an identical decision, Desmond said. Therefore, an appeal to Middlesex County Superior Court would be more likely if the city wanted an alternate decision.

Desmond refused to comment on the probability of the city’s decision prior to the deadline.

“This is essentially assuming that the Civil Service Commission made an incorrect conclusion of law.  A decision can have both infirmities,” Santos said. 

“Weighing the harms in either case should be based on policy rationales rather than political rationales.  The line is thin between the two, but it must be firmly maintained to keep our system of government alive,” Santos said.

”In the end, it is my belief that the decision to appeal should not be based on a political rationale.  The civil service law seeks to remove politics out of the hiring and firing function of a city,” he said.

There is a real need in Somerville for more police officers, Santos said.

“Obviously we don’t want a police officer involved with drug dealing on the force,” he said.

“But if these allegations are unsubstantiated, he should be reinstated.”