PEABODY — A judge has ruled against the city's latest attempt to fire John Brophy, the firefighter who slept through a 911 call.
City Attorney John Christopher and a lawyer for Brophy are scheduled to meet for a status hearing in Salem Superior Court on July 31.
State Appeals Court Judge Mitchell Sikora earlier this month rejected an effort by the city to nullify a preliminary injunction that temporarily prevents Brophy's dismissal. "I find the well explained preliminary injunction order to be fully supported by ... precedents as a matter of law and sound as an exercise of discretion," he wrote.
Judge Francis Fecteau last week denied a subsequent appeal of that decision by the city.
"The injunction stands till further notice," Christopher said.
After more than three years, Christopher is discouraging any optimism that this case can be resolved soon. "Stuff like this takes on a life of its own," he said. The matter will eventually go to trial, he predicted, with a judge or a jury making the final decision.
Brophy's troubles stem from an incident in March 2005 when he slept through a 911 call involving a 6-month-old baby with difficulties breathing. The child survived, but Brophy subsequently failed a drug test.
Over time, legal rulings on the matter have complicated the issue. Brophy had the drug test thrown out. An arbitrator ruled his firing excessive punishment. Mayor Michael Bonfanti, openly angered, launched an unsuccessful legal action to try to have Brophy removed despite the ruling.
A second effort was made to fire him this past May after he declined to take a drug test to return to work. Brophy's lawyer, Richard Callahan of Lynn, won the injunction in June in Newburyport Superior Court preventing that firing. Callahan was not available for comment on this story.
Meanwhile, the city maintains that Brophy was fired prior to the injunction — so it does not apply. Currently, Brophy is not working as a firefighter and not being paid. In effect, he has been fired, but legal action proceeds as if he is still working. Christopher yesterday called the apparent contradiction "puzzling."
As a gesture to the court, Christopher said, Brophy was offered the chance to take the hair follicle test for drug use. He declined. Asked what would happen if Brophy were to take and pass the test and report for duty — Christopher had no comment.
In an affidavit released last May, Brophy maintained that the drug test he is refusing to take is discriminatory — other firefighters returning to work are not required to take a drug test. Ordered by a judge to take a drug test, he later told officials that he had taken one at a testing service of his own choosing. He complained that the city, including the mayor and fire Chief Steve Pasdon, is out to get him. Finally, he needed to finish a plumbing job before reporting to work, a job he was forced to take — while filing an $80,000 performance bond — because of the city's "outrageous" actions, according to the affidavit.
Christopher acknowledged public discontent with the case — mirrored currently by a heated reaction to Boston firefighter Albert Arroyo, who competed in a bodybuilding competition while on disability leave for a bad back.
"My daughter is a nurse," Christopher said. "She told me if she ever fell asleep on the ward she'd be out of there so fast her head would spin."
"It's disappointing that it's gotten this far," City Councilor Barry Osborne said. "You're always concerned about public reaction. ... But as disappointing as it is, everyone is entitled to due process. If the court system says it has to play out, well, we'll just have to wait for it to play out."
