By Molly AK Connors
Concord Monitor
MERRIMACK COUNTY, N.H. — A Merrimack County jury ruled yesterday that the New Hampshire Department of Corrections interfered with one of its employees’ rights to free expression and awarded the man $150,000 in damages.
The jury did not find against the state’s Division of Personnel, which was also named in the suit brought last year by Mark Jordan, a 43-year-old corrections officer and former union president.
“I’m elated,” Jordan said in an interview outside the Merrimack County Superior Courthouse.
“I said from the very beginning that I was innocent and that I was going to be vindicated,” said Jordan, who lives in Manchester.
Jordan was suspended without pay from his job as a corrections officer at the state prison in Concord in March 2010 after a fight in the parking lot after work. Because Corrections Commissioner William Wrenn had asked for an external criminal investigation by the New Hampshire State Police instead of an internal affairs review, Jordan lost benefits, which also covered his wife and 8- year-old daughter, for the bulk of the suspension.
The other officer involved in the fight, Sgt. Tom Messina, remained on the payroll.
By law, the state will also need to pay Jordan’s legal fees. His attorney, Chuck Douglas of Concord, estimated the bill would be about $100,000. It is likely the first time attorneys’ fees have been paid in such a case since the law changed three years ago to allow such an award, Douglas said.
The state has 30 days to appeal to the New Hampshire Supreme Court. Assistant Attorney General Lynmarie Cusack, who said she appreciated the jurors’ patience over the eight-day trial, said she did not know yet if the state would appeal.
Jurors deliberated for about 8[1/2] hours. To find in favor of the plaintiff, they had to decide it was more likely than not that the state had violated New Hampshire law by interfering with Jordan’s ability to publicly discuss his opinions and observations.
The burden of proof in a civil case is lower than that of a criminal case, where prosecutors need to prove an allegation of wrongdoing beyond a reasonable doubt.
As is customary in civil cases, the jurors delivered their verdict in writing to Judge Richard McNamara, who then showed the document to the attorneys in his chambers.
During that meeting, Jordan waited in a darkened courtroom with his head in his hands. He relaxed noticeably when Douglas gave him the news.
Jordan was found not guilty in February of the simple assault charge that resulted from the parking lot confrontation and returned to work in March 2011. The suspension was eventually changed to five days, and Jordan was reimbursed for lost wages.
But during the trial, Douglas argued that those wages failed to cover the true costs of a year without pay or benefits. For example, Jordan had to borrow $10,000 from his in-laws, refinance his house and borrow $3,000 for his wife’s dental work, according to court testimony.
Jordan had also initially sued on the grounds that his year-long suspension warranted a wrongful termination, a count that he withdrew last week.
During the trial, Douglas made the case that his client, president of the local chapter of the union that represents corrections officers, had become so vocal and critical of safety and labor issues in the prisons that officials were determined to silence him.
Wrenn and Jordan both testified they had a good working relationship, full of frequent and respectful cell phone conversations until 2009, when a tight budget took effect.
At the time, Wrenn came under fire from union members because he was given a pay increase and had been approved for use of a car for work when 56 people were laid off.
Moreover Jordan’s union, the New England Police Benevolent Association, and the unions representing parole and probation officers, opposed the support Wrenn and others showed for Senate Bill 500, which allowed an earlier supervised release for certain inmates at the state’s prisons.
Although Jordan continued to speak out over the labor and safety issues in the prisons, Douglas claimed Jordan had become so embarrassed that the news reports often mentioned his assault charge and suspension that he granted fewer interviews than he would have otherwise. Douglas also argued that Jordan was prohibited from effectively discharging his union duties because he was banned from prison property during the investigation.
Attorneys for the state denied the claims, saying Jordan continued to file grievances and clearly felt comfortable speaking out - he even invited the press to one of his court hearings, they pointed out.
They maintained the issues Jordan and Wrenn clashed over were routine personnel matters, and that officials in other unions, who had also been critical of the department, were never the target of any sort of vendetta.
Jurors asked one question around 11:45 a.m., wondering if the plaintiffs needed to prove the state had intended to interfere with Jordan’s free expression, or if they simply had to show that the state had, in fact, interfered with Jordan’s speech.
In interviews yesterday afternoon, attorneys said although the state law does not require the plaintiff to show intent, it would be difficult to prove the case in general without starting to show intent in some way.
“How do you interfere (with someone’s speech) without intending to interfere?” Douglas asked.
Jordan has worked for the department for more than 18 years and said he needs to go on leave as soon as he can to deal with a non- work related neurological condition that leaves his head vulnerable to injury because part of his brain has slipped outside the protection of his skull.
In remarks after the trial, McNamara complimented the attorneys, who at certain points seemed visibly frustrated with one another, on the way they conducted the trial.
“It was a well-tried case,” he said.
Copyright 2011 ProQuest Information and Learning
All Rights Reserved
ProQuest SuperText
Copyright 2011 Concord Monitor/Sunday Monitor