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  1. #1
    Forum Member stm4710's Avatar
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    Default Ok, so he slept though a 911 call, assualted a officer, failed a drug test.........

    ....was fierd....but now is going to comeback and get promoted?????? Got to love those lawyers.

    Ruling favors suspended firefighter



    (single page view)
    (view as multiple pages)By Andrew Hickey
    Staff writer




    PEABODY — An arbiter has ruled the city wrongfully suspended firefighter John Brophy Jr. last summer, a decision that could help Brophy, who was later fired, get his job back.

    Richard Boulanger from the American Arbitration Association ruled this month that the city violated its contract with the firefighters union in May 2004 when it forced Brophy to submit to the wrong kind of drug test during his bid for a promotion to lieutenant.

    Brophy failed the drug test, but Boulanger ruled the test invalid because the city never notified Brophy or the Civil Service Commission of the change in its testing method.

    The city had always used urine samples when drug-testing firefighters but instead tested Brophy's hair follicles. Follicles capture drug use for 90 days or more, while urine holds such evidence for about a week.

    Brophy should be given full back pay and reconsidered for the promotion, Boulanger wrote in his July 1 decision. The Salem News obtained a copy of the 24-page ruling yesterday.

    Brophy was suspended twice more — for missing a 911 call while working as a dispatcher and for an altercation outside a fire in a building owned by his father — before he was fired this spring. Boulanger heard Brophy's case before the other two suspensions. His decision did not address those punishments or Brophy's firing.

    Brophy said during a phone interview that he was pleased with the ruling but could not discuss the decision further.

    "It was good to have a fair and impartial person review the facts and make a decision," he said. "I'm happy that the decision came down."

    The city has 30 days to either honor Boulanger's decision or file an appeal in Superior Court. Neither Mayor Michael Bonfanti nor city attorney Daniel Kulak returned calls seeking comment.

    Boulanger's decision does not say what substance Brophy tested positive for. The city has refused to release details about Brophy's suspension because it involves a personnel matter. Boulanger's decision did not explain why the city changed its drug-testing method.

    Because Brophy failed the drug test, he was suspended for 35 days and denied the promotion. Brophy appealed, and he and the city agreed to argue the case in front a neutral arbitrator.

    "Firefighter Brophy's 35-day suspension is nullified," Boulanger wrote. "He shall forthwith be made whole for the period of the suspension, including lost wages and lost overtime and detail opportunities. Any reference to the 35-day suspension in his personnel file shall be expunged. The city shall forthwith reconsider firefighter Brophy's candidacy for a lieutenant's position based on (Brophy's) standing for it in May 2004 without consideration of the drug test results."

    Boulanger also faulted fire Chief Steve Pasdon for notifying Brophy of the test results by leaving a message on his home answering machine.

    "The city's method of notification to firefighter Brophy of his test results violated the contract because the city had not obtained preapproval of its drug testing plan from the Civil Service Commission," he wrote. "Therefore, as the May 2004 drug test was invalidly administered, its results are hereby nullified as is the city's method of communication of test results to firefighter Brophy."

    Pasdon did not return messages yesterday.

    After Brophy failed the test, Pasdon suspended him for five days and Bonfanti extended that to 35. It was the first of three punishments the firefighter faced in less than a year.

    The mayor fired Brophy on May 3. Bonfanti has not discussed why he fired Brophy but has said the suspensions contributed to his decision.

    On April 4, Pasdon suspended Brophy for five days for missing a 911 call for a baby struggling to breathe. Brophy was working as a dispatcher and sleeping on a department-issued cot when the call came in just after 1 a.m. on March 10.

    As fire alarm operator, Brophy was responsible for answering 911 calls patched through from police headquarters and sending firefighters to emergencies. A firetruck did not respond to the call, but police and ambulance personnel did, and the baby was taken to the hospital and treated for croup.

    Brophy failed to answer nearly a dozen phone and radio calls from rescuers. Police later banged on the door of the Lowell Street fire alarm center and roused him.

    Less than two weeks later, Pasdon again suspended Brophy for five days. This time he was disciplined for his role in an altercation outside of a burning Endicott Street apartment building owned by his father. Brophy was off-duty when he went to the March 11 blaze and had to be physically removed from the scene after a confrontation with Capt. Eric Harrison.

    In that suspension, Pasdon accused Brophy of failing to take orders from a superior officer, insubordination and hindering firefighting operations.

    Brophy filed an assault complaint against Harrison in Peabody District Court, but a clerk magistrate ruled there wasn't enough evidence for charges to be issued.

    Neil Rossman, the lawyer who represents the firefighters union, said yesterday "there's a very real potential, a very real possibility" that Brophy will be rehired.

    Rossman said the suspension for the failed drug test was the most serious of the three. Without that first suspension, Rossman said, Brophy likely would not have been fired.

    "He was discharged as a result of three disciplinary actions that the city imposed on him in less than a year, the most serious of which was just overturned," he said.

    Rossman added that Boulanger heard arguments on the first suspension on March 21, before Pasdon disciplined Brophy a second and third time.

    Rossman said he expects the city to appeal Boulanger's decision. If the city does not appeal or honor the decision in 30 days, Brophy can ask a court to enforce the decision.

    Brophy also appealed his termination, and an arbitration hearing was scheduled for September. But Rossman said Boulanger's decision put that proceeding on hold until it is determined whether the city will honor or appeal the decision
    Last edited by stm4710; 07-14-2005 at 11:59 AM.
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  2. #2
    Forum Member nmfire's Avatar
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    It's unfortunate they screwed up the drug test. I mean, yes he test positive, howevever it is like a search without a warrent. Your screwed, even if you find a big sign that says "I DID IT"
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  3. #3
    Disillusioned Subscriber Steamer's Avatar
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    It depends on what the contract says. If it says simply that a "drug test" will be administered, there should be no problem. If it specifies that a urine test is to be administered and they used any other test, then I reluctantly agree; it should be invalid.

    Personally, if he's been found to have been using illegal drugs, he shouldn't be there. With that being said, if the city has agreed to specific condition and processes for the tests to be administered, they have to be held to those procedures.

    If I were in the city's position though, I'd appeal it to court. Some of the arbitrators are so far out there in their reasoning, it's at best questionable how they come to their findings.

    Just remember that this is a newspaper account, and there's likely to be lots more to this case that we aren't privy to. I'd like to read the entire arbitator's ruling though.
    Last edited by Steamer; 07-14-2005 at 12:41 PM.
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  4. #4
    Forum Member sparky239's Avatar
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    Default Well I think this guy....

    Should find another line of work...Sleeping on duty and missing 911 calls He shoud have been fired on the spot...Kick the union in the head for wanting to keep this clown on the taxe payers payroll..I believe he should be in jail for a few of his actions...Lucky no one has died as a result of his actions..I am not in favor of unions in the fire depts. buisness,were here to save lifes and idiots like this guy causes us more harm and loss of respect to our profession to the public in general.FIRE DOPEY NOW!!!!!

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    This is what I hate about the US legal system:

    HE FAILED THE DRUG TEST! It's as simple as that! So he stopped doing drugs a week before what he thought was going to be a urine test, but instead got a hair folicle test and failed. That means that in the past thee months, he's done some sort of illegal drug. I personally wouldn't want to be in a buring building with someone who does drugs.

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    Forum Member Bones42's Avatar
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    Just curious, but could he test positive with the hair follicle thing if he was just near/exposed to someone doing drugs, like maybe a patient?
    "This thread is being closed as it is off-topic and not related to the fire industry." - Isn't that what the Off Duty forum was for?

  7. #7
    Forum Member stm4710's Avatar
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    City officials stand by suspension



    (single page view)
    (view as multiple pages)By Andrew Hickey
    Staff writer




    PEABODY — The city's fire chief yesterday defended suspending a firefighter who failed a drug test last year, despite a recent arbiter's ruling that the test and its results are "invalid."

    "With the information I had at the time, I felt I had just cause," fire Chief Steve Pasdon said. "And I stand by that."

    Firefighter John Brophy Jr. failed a hair-follicle drug test in May 2004 in a bid for a promotion to lieutenant. Pasdon suspended Brophy for five days and Mayor Michael Bonfanti added 30 more days. Brophy appealed, and the matter went into arbitration.

    Richard Boulanger from the American Arbitration Association issued a decision July 1 saying Brophy should not have been suspended and that he should be given full back pay and reconsidered for the promotion.

    The city has 30 days to file its appeal in Superior Court or to honor the arbiter's ruling. If the city fails to do that, Brophy can seek enforcement of the decision in court.

    Bonfanti would not say yesterday if the city plans to challenge Boulanger's ruling, calling it a "legal matter." He declined to comment further. City attorney Daniel Kulak could not be reached for comment.

    Boulanger found the city violated its contract with firefighters by testing Brophy's hair follicle. He wrote that in the past firefighters seeking promotions submitted only to urine drug tests, setting a past precedence. Anyone asked to take a hair follicle test should have been notified well in advance and the Civil Service Commission should have preapproved the switch, Boulanger wrote.

    Evidence of drug use lasts 90 days or more in hair follicles, while urine captures drug use for about a week.

    Pasdon said the firefighters' contract clearly states that all firefighters up for a promotion are subject to drug and psychological testing. However, the contract does not specify which method of screening will be used. Any firefighter who fails a drug test may face disciplinary action or be denied the promotion and must attend drug treatment programs, the contract says.

    Boulanger's decision indicates that Brophy's test was the first time the department chose to check a hair sample. Neither Pasdon nor Bonfanti would say why the city chose to test Brophy's hair, not his urine.

    Boulanger's decision does not say what substance Brophy tested positive for. He wrote in the decision that the results of the test are now "invalid" and any mention of the failed drug test should be removed from Brophy's personnel file.

    City officials have refused to release details about Brophy's suspension because it involves a personnel matter.

    Brophy was also suspended twice this year — for failing to answer a 911 call while working as a dispatcher and for a fight with a superior officer outside of a burning building. Following the third suspension in less than a year, the mayor fired Brophy on May 3. The 42-year-old Peabody resident had worked for the Fire Department for nearly a decade.

    Boulanger's decision does not take into account the other disciplinary actions taken against Brophy. A hearing on the first suspension was held March 21, before Brophy was suspended for the second and third times and before he was fired.

    Pasdon said he stands by suspending Brophy for failing the drug test, as well as the two suspensions that followed. Each punishment was "a separate and distinct incident" that would have resulted in suspension or termination regardless of the failed drug test from months before, the chief said.

    "They had nothing to do with any previous action I took," he said. "My job here as head of the Fire Department is to ensure the public's safety and I'm trying to do that."

    On April 4, Pasdon suspended Brophy for five days for missing a 911 call for a baby struggling to breathe. Brophy was working as a dispatcher and sleeping on a department-issued cot when the call came in just after 1 a.m. on March 10.

    As fire alarm operator, Brophy was responsible for answering 911 calls patched through from police headquarters and sending firefighters to emergencies. A firetruck did not respond to the call, but police and ambulance personnel did, and the baby was taken to the hospital and treated for croup.

    Less than two weeks later, Pasdon again suspended Brophy for five days. This time he was disciplined for his role in an altercation outside of a burning Endicott Street apartment building owned by his father. Brophy was off-duty when he went to the March 11 blaze and had to be physically removed from the scene after a confrontation with Capt. Eric Harrison. Pasdon accused Brophy of failing to take orders from a superior officer, insubordination and hindering firefighting operations.

    Brophy filed an assault complaint against Harrison in Peabody District Court, but a clerk magistrate ruled there wasn't enough evidence for charges to be issued.

    Neil Rossman, the lawyer who represents the firefighters union, has said that Brophy's first suspension for failing the drug test was the most serious of the three. Now that it's the one that has been overturned, Rossman said Brophy stands a good chance of getting his job back.

    Rossman said he and Brophy had planned to appeal the firefighter's termination in an arbitration hearing in September, but that has been postponed because of Boulanger's decision. Rossman said the union is waiting to hear whether the city will appeal or honor Boulanger's ruling before they fight Brophy's firing.
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  8. #8
    MembersZone Subscriber pvfire424's Avatar
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    Ya know, I wonder if he reported to work on any of those 35 days he "wasn't suspended" ?
    Would'nt repeated No-Call-No-shows be grounds for termination ?

    I mean hey, if they are going to nullify the suspension like it never happened, then he should have been there, I am looking thru your records, sir & I dont see a reason for your absence.

    Ok remove tounge from cheek. Actually, odds are, this guy will soon skrew up again, and give the departmentyet another reason to terminate him. Until that happens, just be sugar sweet to the gentleman.
    Last edited by pvfire424; 07-18-2005 at 11:27 AM.

  9. #9
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    Posted by Berks2Montco84

    This is what I hate about the US legal system:

    HE FAILED THE DRUG TEST! It's as simple as that! So he stopped doing drugs a week before what he thought was going to be a urine test, but instead got a hair folicle test and failed. That means that in the past thee months, he's done some sort of illegal drug. I personally wouldn't want to be in a buring building with someone who does drugs.
    If you had a poppy seed bagel for breakfast a few days ago, there is a good chance that your drug test would come back with a positive, as poppies are the flower from which heroin is derived.

    If the contract specifies one method of random drug testing and the city uses another, they are in violation of the contract.

    One also has to remember that when a case goes to arbitration, it is a third party that makes the determination based on the merits of the case. Each party present it's arguement

    As far as the "I personally wouldn't want to be in a buring building with someone who does drugs" line... take a good hard look in the lockers of the people in your station. Many of them have enough medications in them to open a pharmacy, and there are some meds that are prescribed that can have serious contraindications when used with another prescription.

    Here's another hypothetical example of a way a drug test can awry...

    A firefighter had some serious dental work done, and the oral surgeon prescribes Percocet for pain relief if needed. The firefighter has the prescription filled out, takes a few of them the first day or two then feels that they are no longer needed.

    Fast forward a few months.. while loading hose after a fire on his second duty day, the same firefighter pulls a muscle in his lower back, it's bothering him, but not enough to go to the ER to be checked out. He lets his company officer know so the injury can be documented. Later that night, at home, he is having a hard time falling asleep, as his back is killing him. He remembers that he has the Percocet, so he pops one and eventually drifts off to sleep. It was enough to take the edge off, and he works his two night tours, and on his four days off he rests so he can return to work. Four days later, he is back to work for his first duty tour and asked to give a hair and urine sample as per the drug testing requirement spelled out in the contract agreement. Of course, the test comes back as a positive for the percocet. The city takes action, even though the prescription is in his name. The City's arguement is that the Percocet was prescribed for pain following dental work, not back pain, and now the City wants to begin termination proceedings.

    Do you side with the firefighter or the City in this arguement?
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  10. #10
    Forum Member stm4710's Avatar
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    Originally posted by CaptainGonzo
    Posted by Berks2Montco84



    If you had a poppy seed bagel for breakfast a few days ago, there is a good chance that your drug test would come back with a positive, as poppies are the flower from which heroin is derived.

    If the contract specifies one method of random drug testing and the city uses another, they are in violation of the contract.

    One also has to remember that when a case goes to arbitration, it is a third party that makes the determination based on the merits of the case. Each party present it's arguement

    As far as the "I personally wouldn't want to be in a buring building with someone who does drugs" line... take a good hard look in the lockers of the people in your station. Many of them have enough medications in them to open a pharmacy, and there are some meds that are prescribed that can have serious contraindications when used with another prescription.

    Here's another hypothetical example of a way a drug test can awry...

    A firefighter had some serious dental work done, and the oral surgeon prescribes Percocet for pain relief if needed. The firefighter has the prescription filled out, takes a few of them the first day or two then feels that they are no longer needed.

    Fast forward a few months.. while loading hose after a fire on his second duty day, the same firefighter pulls a muscle in his lower back, it's bothering him, but not enough to go to the ER to be checked out. He lets his company officer know so the injury can be documented. Later that night, at home, he is having a hard time falling asleep, as his back is killing him. He remembers that he has the Percocet, so he pops one and eventually drifts off to sleep. It was enough to take the edge off, and he works his two night tours, and on his four days off he rests so he can return to work. Four days later, he is back to work for his first duty tour and asked to give a hair and urine sample as per the drug testing requirement spelled out in the contract agreement. Of course, the test comes back as a positive for the percocet. The city takes action, even though the prescription is in his name. The City's arguement is that the Percocet was prescribed for pain following dental work, not back pain, and now the City wants to begin termination proceedings.

    Do you side with the firefighter or the City in this arguement?
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    Capt. Gonzo,

    First of all this in no way is calling your post into question. But, I take a drug test at least twice a year and during the original paperwork for the screening you are asked to list any and all medications that you have taken in the last few weeks. I think that nowadays the technology of drug screening doesn't pick up poppy seed bagels and muffins. If it did I would have been up poop creek w/out a paddle. I eat them all the time and had a poppy seed bagel the day before a test but no "Positive Reading" I drive a school bus part-time and if I did have a positive I know for sure they would have me in the office. Now I know things can go really bad on a drug screen if you don't disclose what meds you have taken and it don't look good if you get a positive and then try to tell them about "meds".

    JMHO----nothing meant to argue or tell anyone they are wrong.

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    Clear and purley simple. Fire the *** and be done with it. From the accounts I've read he could care less about the job.

    I believe some time back another post was on here about the towns people being up in arms about the 911 call that unanswered by the FD and than come to find out that this incident involved same idiot ? - I defended his first action only because I too work as a firefighter and I know how long and boring night tour can be especially when you've got the watch and to doze off is common place but than he continued to cause problems ?

    He's making too much publicity and wave in his community and department, he's loving every minute of it, and again could care less about being a firefighter. Get rid of him and put someone in his place that might actually care about the job, and assisting the public.

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    Cappy, I get where you're coming from, but to me this seems like a completely different situation. There is a difference between people who do do recreational drugs and people who take medication coctails. Like some other people have pointed out, with this guy's track record, he doesn't seem like he belongs in the fire service....that's just my opinion...

  14. #14
    Forum Member Smoke20286's Avatar
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    Originally posted by CaptainGonzo
    Posted by Berks2Montco84





    Do you side with the firefighter or the City in this arguement?
    I side with the firefighter in every argument
    A'int No Rocket Scientist's in The Firehall

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    Lightbulb

    The thing is, I would stand beside any Fire Fighter who is in the right, but this doesn't sound right to me.

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    Lightbulb

    The thing is, I would stand beside any Fire Fighter who is in the right, but this doesn't sound right to me.

  17. #17
    Forum Member Smoke20286's Avatar
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    1- Never believe the press

    2- Never believe management
    A'int No Rocket Scientist's in The Firehall

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    Originally posted by Smoke20286
    1- Never believe the press

    2- Never believe management
    Do you have the full story then? I'd love to hear it, because right now all I have to go off of is what I've heard....and what I've heard isn't too favorable towards the firefighter....

    You know, despite our brotherhood, there are still some firefighters that I know who I don't think should be firefighters. These people are gloryhounds and are only firefighters to tell people they are, and quite frankly I wouldn't take their side in a battle between the company/township and them. You can't just join a fire company and expect to instantly be accepted into the brotherhood....

  19. #19
    Forum Member Smoke20286's Avatar
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    Nope I know nothing about this story, nor am I interested in what someone has "heard" I will presume this brother innocent till proven guilty.

    I agree there are firefighters who are not team players, it has been my experience they usually do not last long in this profession
    A'int No Rocket Scientist's in The Firehall

  20. #20
    Forum Member stm4710's Avatar
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    I agree there are firefighters who are not team players, it has been my experience they usually do not last long in this profession
    This is the point---the city is trying to get him out of that profession because he has proved on more than one occasion he cant handle it.
    This isnt a Rescue Me or Third Watch episode, this is peoples lives and property at stake. If I were a resident of Peabody I would want to know why my tax dollars are being use to fight this crap when this city of 50,000 people is haveing to call multiple alarms because they only have 2 man engine companys some days.


    City to appeal ruling on firefighter



    (single page view)
    (view as multiple pages)By Andrew Hickey
    Staff writer




    PEABODY — The city's legal department said there is "no question" they will appeal an arbiter's ruling that overturned a firefighter's suspension for failing a drug test last year.

    City attorney Daniel Kulak said yesterday he will file the appeal this week, adding that any firefighter's drug use constitutes a public danger.

    "The arbiter does not have the power to say what he said," Kulak said. "He exceeded his authority."

    The arbiter, Richard Boulanger from the American Arbitration Association, issued a decision July 1 saying firefighter John Brophy Jr. should not have been suspended and that he should be given full back pay and reconsidered for a promotion.

    Brophy failed a hair-follicle drug test in May 2004 in a bid for a promotion to lieutenant. Fire Chief Steve Pasdon suspended him for five days and Mayor Michael Bonfanti added 30 more days. Brophy appealed, and the matter went into arbitration.

    Kulak said yesterday that Boulanger's decision goes against public policy. The appeal will likely be heard by a judge until about late fall.

    "The public expects those in public safety to be fully alert and able to perform their duties," Kulak said. "If someone fails a drug test, it calls into question that ability."

    Drug use by a firefighter, Kulak said, is not only a public safety hazard but potentially puts other firefighters in danger.

    "If I was a fellow firefighter, I'm not sure I'd want to be working with that person," Kulak said. "You couldn't count on him to cover your backside."

    The city's contract with its firefighters indicates that any employee up for a promotion is subject to drug testing but doesn't specify what testing method will be used. In the past, Boulanger wrote, urine tests were used. Brophy was the first firefighter to submit a hair follicle for testing.

    Kulak said the city chose to start using hair-follicle testing as opposed to urine because "a hair sampling gives you a longer history." Evidence of drug use stays in urine for about a week, while a hair follicle captures drug use for about 90 days.

    Kulak added that it is easy for a person to flush evidence of drug use out of his or her system to pass a urine test.

    Boulanger wrote in his decision that the city needed preapproval from the Civil Service Commission before switching to hair tests; therefore, he ruled the test "invalid." He wrote that the use of urine screening set a past precedence and determined the use of a hair-follicle test a violation of the firefighters' contract.

    City officials would not say what substance Brophy tested positive for. Boulanger's ruling does not indicate what drug was found in Brophy's hair follicles.

    The 2004 suspension was the first of three disciplinary actions taken against Brophy in less than a year. He was suspended twice more — for failing to answer a 911 call while working as a dispatcher and for a fight with a superior officer outside of a burning building. Bonfanti fired Brophy on May 3, shortly after the third suspension was handed down.

    Neil Rossman, the lawyer representing the firefighters union, said Boulanger's decision gives Brophy a good chance of getting his job back. Rossman has called the suspension for the failed drug test the most serious of the firefighter's three suspensions.

    Kulak, however, said that isn't the case. He said each suspension was justified and the city stands by all three. Both Kulak and Pasdon have said each incident was a separate and distinct incident that could have led to a suspension or termination despite the failed drug test from months before.
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