Judge: Lowell Officer Previously Bypassed Should Be Next in Line for Promotion
LOWELL -- A Lowell police officer with the highest score on a promotional exam -- and a well-publicized disciplinary record -- should go to the top of the list for consideration for the next open sergeant position, according to a recent decision by a Middlesex County judge.
The decision in the appeal filed by Officer Daniel Otero hinged on procedural issues, which Judge Douglas Wilkins argued created at least the “appearance of impropriety” in the city’s decision to bypass him for a promotion.
It also represents the latest chapter in the officer’s well-publicized legal battles with his employer.
In December 2014, Daniel Otero was bypassed for a promotion to sergeant, in favor of the third highest scorer on the exam, Daniel Perrin. Otero appealed the bypass to the Civil Service Commission, which sided with the city in a 16-page report that laid out Otero’s lengthy personnel record, including an internal investigation that found Otero falsely accused another officer of child abuse.
A second appeal landed the case in Middlesex Superior Court where Judge Wilkins ruled on March 18 the city’s procedure for bypassing Otero -- namely an alleged conversation followed by a belated written notice of reasons -- should not have been admissible before the Civil Service Commission.
“If the appointing authority cannot even comply with these simple procedural requirements, it leaves both the appearance of impropriety and the possibility of actual impropriety,” Wilkins wrote.
Perrin was notified of his promotion on Dec. 12, 2014, but Otero did not receive a letter from the city citing the reasons for his bypass until a month later. The city is legally required to provide written reasons “immediately,” according to the decision.
That letter, drafted by then-Deputy Police Superintendent Deborah Friedl, listed Perrin’s merits and Otero’s record of personnel issues as the reasons for the bypass. The letter was reviewed by former Superintendent of Police William Taylor and the City Solicitor’s Office and signed by former City Manager Kevin Murphy, according to the decision.
The letter, previously included in the Civil Service Commission’s decision, referenced an incident that launched two investigations and resulted in a five-day suspension of the officer.
Otero allegedly told police he had a video that showed his wife’s ex-husband, Officer Timothy Golden, abusing their child. The Department of Children and Families investigated and found the claims unsubstantiated. A separate police investigation found Otero made false and conflicting reports.
At the time, Gary Nolan, who represents Otero, called both officers “valuable, hardworking public servants” and wrote in an email Otero worked in the best interest of the child. Otero appealed the 2014 suspension, which was upheld in a Suffolk Superior Court decision in 2017.
The bypass letter also mentioned other incidents from Otero’s personnel record including the use of vulgarity in a department-wide message when his mountain bike was missing from its storage location, falsely reporting an illness and twice leaving his assigned patrol to watch football without a supervisor’s permission.
“As it stands, the court’s alternative holding is that, if the belated letter in fact represents the real reasons for the bypass, then substantial evidence exists to support those reasons and the bypass itself,” Wilkins wrote.
The court ordered the vacating of the 2016 Civil Service Commission and recommended, but did not order, bumping Otero up to the top of the list for promotion to sergeant.
The Civil Service Commission has the final say on whether to enact this action. In an email, Christopher Bowman, a spokesman for the commission said the department does not “comment on matters pending before the commission.”
Nolan said he and his client are “pleased” with the outcome. He said the decision to bypass Otero was “complicated by conflicts of interest and a host of procedural irregularities.”
“The city in this case took this promotional opportunity away from Officer Otero, and then illegally came up with its justification for doing so after-the-fact,” he wrote in an email. “The court issued a stern rebuke of the prior city and Police Department administrators for their conduct, and ruled that the city actually had no admissible evidence to support its decision to bypass Dan. This is an important ruling for Civil Service employees and communities statewide.”
According to Nolan, the city has filed a motion asking the judge to reconsider his decision. If the city appeals the decision, Nolan said he and his client “will follow the city down the rabbit hole.”
The Lowell Police Department and City Solicitor’s Office did not return requests for comment.
Otero joined the Lowell Police Department in 1996, retired on disability in 2006 and returned to the department after graduating from the Lowell Police Academy in November 2011. As part of that class he earned the P.J. Johnson Award for Outstanding Achievement.
Otero was also one of the officers involved in the October 1998 “bus trip” case where the city alleged he and several other officers sexually harassed former Officer Vanessa Dixon during an off-duty bus trip to Boston.
Otero joined other officers suspended as a result of the incident in a suit against the city claiming they were not involved in the harassment. The city settled, paying Otero $10,000.
Follow Elizabeth Dobbins on Twitter @ElizDobbins