Cohasset gets “demand” letter from Mark DeLuca’s attorney

The Town of Cohasset, Water Commissioner Peter DeCaprio and

acting town manager Mike Milanoski named in DeLuca matter

It appears former police chief Mark DeLuca and former town manager Mike Coughlin have joined forces in a whistleblower suit against the town that involves some of the same players.

In a four-page letter to Cohasset selectmen, Attorney Gregory J. Aceto, a partner in the firm of Aceto, Bonner & Prager, PC,  Boston told selectmen he would like to settle the matter of DeLuca’s  claims against the town amicably, but was prepared to seek court action if the town and DeLuca could not resolve their differences.

Aceto did not specify what kind of settlement DeLuca was seeking.

The Town of Cohasset is about to advertise for a new town manager; it is thought the board is waiting for that individual to be hired before seeking a new police chief, who under the Town Manager Act is hired by the town manager. Former town manager Mike Coughlin is suing the town asking for reinstatement. DeLuca could not be reached for comment but he also is asking for reinstatement.

Aceto’s Letter to Select Chair Fred Koed reads as follows:

Please be advised that this firm represents Police Chief Mark M. DeLuca (“Chief DeLuca”) regarding certain claims Chief DeLuca asserts against the Town of Cohasset (the “Town”), Michael Milanoski (“Mr. Milanoski”) and Peter DeCaprio (“Mr. DeCaprio”) arising out of his employment as the Chief of Police for the Town of Cohasset.

Employment Background

 As I am sure that you are aware, Chief DeLuca was hired as the Chief of Police on or about January 25, 2010, for a three-year term set to expire on January 24, 2013.  The Town and Chief DeLuca agreed to extend the original term of employment to August 1, 2014, pursuant to an Employment Contract Extension Agreement, dated February 7, 2012 (the “Extension Agreement”).  The Extension Agreement was signed by the former town manager Michael J. Coughlin (“Mr. Coughlin”)  on behalf of the Town.

 Chief DeLuca’s Support for Mr. Coughlin

 Subsequently, a dispute arose between Mr. Coughlin and members of the Town Board of Selectmen (the “Board”) arising out ofMr. DeCaprio’s apparent conflict of interest pertaining to several matters before the Board and another municipal authority.  Chief DeLuca continued to express to various selectmen and the Board his support of Mr. Coughlin despite this brewing controversy about Mr. DeCaprio.

Mr. Milanoski ‘s Illegal Appointment

 After Mr. Coughlin’s injudicious removal as Town Manager on February 14, 2012, Mr. Milanoski was appointed as Acting Town Manager on or about February 18, 2012, despite the fact that he was currently serving as an Associate Conservation Commissioner and as a member of the Town’s  Governance Committee.   Following his resignation from these other town positions, Mr. Milanoski continues to serve as “Acting Town Manager” and remains in this position to date.  It is Chief DeLuca’s belief that Mr. Milanoski was wrongfully appointed in violation of The Cohasset Town Manager’s Act (the “Town Manager’s  Act”), Section 3(1).

At the time of Mr. Milanoski’s appointment, the Town Manager’s Act, Section 3(1), dictated that no person in an elected or appointed office in the Town could hold the position of Town Manager within one (1) year of holding such elected or appointed office.  Mr. Milanoski held such an elected or appointed position in the Town and only resigned from these offices after being appointed Town Manager.  Furthermore, the “Acting Town Manager” title, which the Town has attempted to label Mr. Milanoski’s position, implies that the search for a qualified individual to permanently fill this position is ongoing; however, no action has been taken in the search for or appointment of a more permanent Town Manager.  In short, Mr. Milanoski has been serving as Town Manager in an illegal capacity, thereby rendering all decisions made on behalf of the Town void and unenforceable.

False and Slanderous Charges Against Chief DeLuca/Settlement  Negotiations

After his illegal appointment was secured, Mr. Milanoski set his sights on Chief DeLuca. He fabricated frivolous, false and slanderous charges against Chief DeLuca with the assistance of others in the Cohasset Police Department and then released the false and slanderous information to the media, damaging Chief DeLuca’s reputation in the law enforcement community.  Mr. Milanoski subsequently suspended Chief DeLuca pending an investigation and hearing.  In sum, Mr. Milanoski attempted to generate undue pressure on Chief DeLuca in order to obtain his resignation.  Ultimately, Mr. Milanoski and Chief DeLuca reached a tentative agreement that allowed Chief DeLuca to receive partial compensation pursuant to the original term of his contract.  However, for reasons set forth below, there was never an effective agreement between the parties.

Specifically, the inchoate settlement agreement, circa October 2012, attempted to be negotiated on behalf of the town by Mr. Milanoski holds no legal binding effect as it was negotiated and executed by Mr. Milanoski at the time that he was serving in an illegal capacity. Additionally, Mr. Milanoski did not seek the approval of the Board as required by the Town Manager’s Act.  Pursuant to Section 4(C)(v)(n), the Town Manager must seek the approval of the Board before he or she may prosecute, defend or compromise any litigation to which the Town is a party.  As such, Mr. Milanoski commenced a disciplinary process against Chief DeLuca without the requisite Board approval.  More importantly, Mr. Milanoski’s failure to obtain the necessary Board approval of the terms of any settlement agreement between the Town and Chief DeLuca rendered any negotiations and resulting agreement void.

Furthermore,  Mr. Milanoski asserted that the Extension Agreement  was invalid, even though Town Counsel Paul DeRensis had advised him that the serving Town Manager has “sole contract authority”  for department  heads such as the Chief of Police, in accordance  with the Town Manager’s Act, Section 4(C)(iii).  Mr. Milanoski misled Chief DeLuca about the law in a bad faith effort to apply undue pressure on Chief DeLuca to settle his dispute.

In short, Chief DeLuca hereby maintains that to the extent that there was any effective settlement agreement reached between the Town and Chief DeLuca, the terms are rendered void and unenforceable based on the preceding points.  In terms of remedial damages, Chief DeLuca hereby demands his reinstatement  as Chief of Police through the term stated in the February 7,

2012 Extension Agreement, signed by the former Town Manager with the term ending August 1,2014.  Alternatively, Chief DeLuca demands reinstatement until a legal Town Manager is appointed to negotiate a valid settlement between Chief DeLuca and the Town.  Unfortunately, Mr. Milanoski tortiously interfered with Chief DeLuca’s employment  and settlement

negotiations between Chief DeLuca and the Town, acted with bad faith, and dealt unfairly during those negotiations, harming Chief DeLuca financially by his wrongful removal as Chief of

Police.

Whistleblower Violation

 In addition, the attempted termination of Chief DeLuca from his employment  as Chief of Police was in violation of the Massachusetts  Whistleblower Statute, M.G. L. Ch. 149, § 185 (the “Whistleblower Act”).  In that regard, Chief DeLuca asserts that the purported termination was integrally related to the termination of Mr. Coughlin, and in retaliation for Chief DeLuca’s furtherance of and support for Mr. Coughlin’s claims of illegal activity and conflicts of interest surrounding  the Town’s employment of a private water company to supply the Town’s  water.

As you may be aware, Mr. Coughlin has filed suit alleging that his termination was wholly due to his discovery and resulting disclosure of such activity and conflicts of interest.  Mr. Coughlin had spoken with Chief DeLuca about his concerns, and Chief DeLuca expressed support for Mr. Coughlin and reported and reiterated Mr. Coughlin’s claims and concerns to the members of the Board.  It was this support of Mr. Coughlin, and Chief DeLuca’s furtherance  of Mr. Coughlin’s claims and concerns, that provided, at least in part, the motivation for Chief DeLuca’s suspension and attempted termination.

As you should be aware, the Whistleblower Act protects individuals such as Mr. Coughlin and Chief DeLuca from such improper and untimely termination,  or any other adverse employment action, in retaliation  for actions considered to be protected conduct under the statute. It is Chief DeLuca’s belief that both he and Mr. Coughlin were terminated for engaging in such protected conduct — disclosing certain misconduct and conflicts of interest they reasonably believed to be improper and illegal — which violates the Whistleblower Act and may expose the Town to significant liability, including liability for damages, litigation costs and attorney’s fees.

Chief DeLuca tenders this demand letter in hopes of settling this matter amicably, and to avoid protracted and costly litigation.  However, should the Town fail to take action in this matter, Chief DeLuca is fully prepared to continue to assert his legal rights and to seek redress before the courts.

 

© Copyright 2013 Tanna K, All rights Reserved. Written For: Tinytown Unleashed
Share