West Bath to vote on settlement for firefighter who sued under whistleblower act

Posted July 23, 2014, at 6:36 p.m.
Last modified July 23, 2014, at 7:05 p.m.

WEST BATH, Maine — West Bath voters will decide at a July 31 town meeting whether to accept a settlement with a local firefighter who is suing the town and two former fire chiefs for violating the Maine Whistleblowers’ Protection Act and the Maine Human Rights Act.

Michael Drake of West Bath filed suit in February 2013 against the town and former fire chiefs Michael Demers of Bath and Barry MacArthur of Brunswick.

Drake, who is a full-time firefighter for the city of Bath and was a deputy chief with the volunteer West Bath Fire Department for several years, alleged that he was wrongfully demoted as deputy chief in March 2011, just one month after reporting to town officials that Demers was misusing a town fire engine and funds of the volunteer firefighters association.

The town, Demers and MacArthur have denied all allegations of wrongdoing, according to court documents.

According to a complaint filed in February 2013 in Sagadahoc County Superior Court, Drake “learned in a variety of ways” in January 2011 that Demers “was misusing monies of the volunteer firefighters association of West Bath and was using the town’s fire engine to raise money for a private purpose in a way prohibited by the town selectmen, namely by charging private citizens of West Bath a fee for filling their swimming pools with water.”

The complaint charges that after Drake reported the activities to then-West Bath Town Administrator Pam Hile and to two selectmen who are not identified in the complaint, he was demoted by Demers and MacArthur, who also was a deputy chief at the time. A written memorandum from Demers and MacArthur concerning Drake’s demotion allegedly refers to the “tension and unhappiness” of the past month.

According to the lawsuit, Drake complained to town administrators and said he was reinstated as a deputy chief within a week.

Town administrators admit in their response to Drake’s lawsuit that they informed him he had been inappropriately terminated as deputy chief, but they deny that any unlawful activity took place. They also deny that he ever resumed his duties as deputy chief.

Drake charges, and the defendants deny, that on April 12, MacArthur again terminated Drake as deputy chief, telling him he would not even be a lieutenant in the department.

The suit alleges that Drake suffered adverse employment action after he reported the “unlawful conduct of Chief Demers.”

On Wednesday, Chief Deputy Brett Strout of the Sagadahoc County Sheriff’s Office said no criminal complaint has been filed against Demers, and Strout added that he was not personally aware of any police investigation into the allegations.

Drake’s lawsuit further alleges that Drake was “injured by the above actions of the defendants, suffered damage to his reputation and had inflicted on him severe emotional distress and suffering.”

He seeks statutory, compensatory and punitive damages, back pay, interest on back pay, attorney fees and legal costs.

Drake previously filed a complaint with the Maine Human Rights Commission, and on Dec. 11, 2012, was issued a right-to-sue letter at his request, according to investigator Angela Tizon. Tizon said such a letter can be issued when requested if a case is open for 180 days with no finding.

The parties entered mandatory mediation, and the town of West Bath was represented by a single selectman who is not identified in court documents. On Nov. 27, the parties informed the court that they had agreed to settlement terms subject to town meeting approval of a financial settlement.

But in March, attorney Roger Theriault, who represents the town and the two former fire chiefs, wrote that the other two selectmen were not in favor of the proposed settlement, and he argued that the agreement thus was not binding. Judge Andrew M. Horton ruled that by sending one selectman to mediation, the other board members authorized that person to enter into an agreement on their behalf. The board agreed to honor the agreement.

At the request of Drake’s attorney, Howard Reben, Horton also sanctioned the defendants $300 for the additional legal expenses incurred by Reben.

On July 31, voters will gather at the West Bath Fire Department for a special town meeting, to decide if they will support either of two proposed settlements, or reject them and continue to trial.

Terms of one settlement would pay Drake $25,000 and provide a letter of recommendation, and Drake would resign from the West Bath Fire Department and retain no right to re-employment in the town or Fire Department.

Under the other proposed settlement, the town would pay Drake $16,500 and provide a letter of recommendation, but Drake would not resign his position with the Fire Department.

On Wednesday, West Bath Fire Chief Greg Payson declined to comment on the case.

Theriault also declined to comment other than to say, “The town is required to present and look for funding for some settlement options in this case and that’s what we’re doing.”

Reben, said Drake “has gone through hell in a bucket,” but will attend the July 31 meeting.

“My understanding is that Mike will advocate for the lower amount,” Reben said. “He feels like it’s his community, he didn’t do anything wrong, the [defendants] did something wrong, and he wants to stay on.”

Reben said either settlement would be “a good deal” for both parties. Furthermore, he said that if no settlement is approved and the case proceeds to trial, the town would have to pay legal fees for both sides because the case involves an alleged human rights violation.

The combined fee, he said, would probably be “in the neighborhood of $100,000.”

 

CORRECTION:

A previous version of this story misspelled Pam Hile’s name.

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