An excerpt from the >16,000-word opinion written by Commissioner Paul Stein in Abasciano v. Boston Police Dep't, decided last month by the Commonwealth of Massachusetts Civil Service Commission, though just posted on Westlaw:
The substantive issue presented in this appeal is whether certain tweets sent by the Appellant on January 6, 2021, while attending the so-called "Stop the Steal" rally in Washington, D.C., constituted substantial misconduct that warranted his termination as a Police Officer in the Boston Police Department (BPD). It was undisputed that, when the tweets were sent, the Appellant was off duty, they were sent from a private Twitter account and they did not identify the Appellant or his employment with the BPD. It was also undisputed that the Appellant did not participate in any way in the violent insurrection that day at the Capitol following the rally.
The BPD conducted two thorough internal investigations—one by the Anti-Corruption Division (ACD) completed in May 2021 and another by the Internal Affairs Division (IAD) completed in November 2021. The ACD investigation confirmed that the Appellant had not personally participated in the violent insurrection or committed any criminal acts. As to the Appellant's tweets, the IAD investigation concluded that they were not intended to incite or condone violence and they did not impact the Appellant's ability to do his job. Overall, these investigations concluded that the Appellant had not engaged in any misconduct that violated the BPD's Rules and Procedures.
More than a year later, in December 2022, newly appointed BPD leadership reopened the Appellant's IAD file and, this time, reached a starkly different conclusion that charged the Appellant with "conduct unbecoming" for sending the January 6, 2021 tweets and recommended that the Appellant be terminated, which recommendation the new Police Commissioner adopted.
The Commission held in Abasciano's favor:
