By Lyle Moran | Original Article
LOWELL — The court-ordered prohibition on the city promoting a police sergeant who lives in New Hampshire will continue until at least next Tuesday.
Police Sgt. Steven O’Neill of Tyngsboro last week obtained a temporary restraining order prohibiting the city and Police Superintendent William Taylor from promoting Sgt. Donald Crawford to lieutenant because he lives in New Hampshire, which O’Neill alleges is in violation of state law and city ordinance.
During a hearing Tuesday in Lowell Superior Court on O’Neill’s request for a preliminary injunction, Judge Laurence Pierce said he would benefit from further arguments from all parties involved in the case and gave them a week to submit further briefs.
The restriction on Crawford’s promotion remains in effect until any decision by Pierce.
Crawford finished tied for third on the late April promotional exam and currently sits tied for second place on the list of officers in line for four promotions to lieutenant.
Taylor decided to hold off on all four promotions set to go into effect this past weekend in light of the restraining order. He declined to comment after Tuesday’s court hearing.
All parties agree that Crawford lives in Hudson, N.H., and he resided there when he took the promotional exam in late April.
But the city argued both Tuesday in court and in court documents that the city ordinance that requires city employees to live in the state is “invalid and unenforceable.”
Assistant City Solicitor Jill Murray pointed to Massachusetts General Laws Ch. 41, Sec. 99A, to make the city’s argument.
That section of state law, which was enacted in 1978, eliminated the requirement that members of police and fire departments live in Massachusetts, according to Murray.
Murray also said it is not in the public interest for the city to be ordered to wait to make the promotions to lieutenant.
“To some extent, it is a problem of the city’s own making,” said Pierce, pointing to the city not enforcing its state-residency requirement.
O’Neill, who has served the Police Department for almost 30 years, is now among the top nine candidates who can be considered for the four lieutenant promotions following the retirement of Sgt. Tom Fleming.
Ryan Sullivan, O’Neill’s attorney, said his client is just asking for the city to comply with state law and city ordinance to ensure that those eligible for promotion are bona-fide residents of the state.
Massachusetts General Laws Ch. 31, Sec. 58, requires police officers in civil service communities to live in the state.
Sullivan also highlighted that the city ordinance regarding residency says that those employees who don’t live in the city are considered voluntarily terminated from their employment. He has argued Crawford was not eligible to sit for the promotional exam.
In response to a complaint from O’Neill, earlier this month the Civil Service Commission ordered that a status conference and/or hearing be held in January to determine whether as of the date of the conference, Crawford is in compliance with the state law regarding residency.
Andrew Gambaccini, an attorney for Crawford, agreed that the section of state law referenced by Murray superseded any state laws or city ordinances requiring state residency.
Gambaccini also told the court that in 2007 Crawford planned to move from Massachusetts to New Hampshire to take care of a sick relative. At that time, Crawford was told by then-Deputy Police Superintendent Kenneth Lavallee that he could move to New Hampshire, according to Gambaccini.
Crawford’s attorney also said that before moving to New Hampshire, his client considered a 2007 memo from then-Assistant City Solicitor Thomas Sweeney that said the state law eliminating a Massachusetts residency requirement for police officers preempts any city ordinance.
O’Neill is also seeking for the city to be prohibited from promoting Sgt. John Cullen, who is among those tied with Crawford on the promotion list, to lieutenant.
A temporary restraining order was not issued preventing promotion of Cullen, whom O’Neill alleges lives in New Hampshire.
The Civil Service Commission found Cullen appears to live in Dracut and within 10 miles of Lowell, which is also required of officers, so there was no reason to further investigate whether he is in violation of the law.