Judge says Oak Bluffs must pay Martell’s $35,736 legal bill

In a decision May 11, Dukes County Superior Court Associate Justice Tina S. Page ordered the town of Oak Bluffs to reimburse $35,736 in attorney fees to Peter Martell. Mr. Martell ran up the fees in his successful lawsuit against the town.

Judge Page found that Oak Bluffs fire chief Pete Forend and the town had dismissed Mr. Martell from his position as fire inspector without cause.

The town spent approximately $6,200 in legal fees to defend the lawsuit.

“They owe me, they’ve got to pay,” Mr. Martell said in a comment on the decision. Mr. Martell had asked the court for twice that amount.

The selectmen did not discuss the lawsuit or the May 11 decision at their regular meeting Tuesday.

Town administrator Michael Dutton told The Times in a telephone conversation Wednesday that the town received the decision a few days earlier. He said he forwarded the decision to selectmen Wednesday morning.

“I hadn’t read it yet,” Mr. Dutton said. “I’ve forwarded the decision to them. It’s obviously not a decision we’re happy with, but we’re quite satisfied the judge saw fit to reduce the fees quite substantially.”

Called for comment Wednesday morning, board chairman Kathy Burton said she was unaware of the decision.

State law allows a party to a lawsuit to recover reasonable fees and costs, if a judge finds that claims made were “wholly insubstantial, frivolous, and not advanced in good faith.”

In bad faith

The award of attorney’s fees stems from a case decided decided on June 17, 2010 by Judge Page. In that case, Oak Bluffs said Mr. Martell’s dismissal resulted from incidents of insubordination at two fires in the winter and spring of 2008. The town also claimed that Mr. Martell misappropriated $100 in funds from fire department accounts, a claim the judge later ruled was a clerical error.

In the original ruling, Judge Page held that neither of those claims was substantiated, and neither was a cause for termination, even if they had been substantiated.

In her May 11 holding, Judge Page ruled that the claims of insubordination and misappropriation of funds were unwarranted. She used strong language to support her decision.

“In this case, the problems between Martell and Forend stemmed from the fact that they each applied for the position of chief, and that Forend was ultimately appointed,” Judge Page wrote in her decision. “Although some of the claims advanced by the defendants reflect poor judgment rather than an absence of good faith, I conclude that as a whole, substantially all of them were frivolous and reflect bad faith.”

Judge Page singled out the third reason the town cited for firing Mr. Martell as “most troubling.” The town asked for dismissal of the case, claiming that Mr. Martell was subject to a retirement policy adopted on January 12, 2010, setting the mandatory retirement age for firefighters at 65.

“The defendants argued that judgment should enter in their favor since Martell was over 65 years of age at the time of his termination,” Judge Page wrote. “This policy went into effect, however, nearly two years after Martell’s termination and is a glaring example of ex-post facto (after the fact) application of the law.”

Fee fight

In his original motion, Mr. Martell asked for costs and attorney fees of $71,600.

Attorney Jonathan Margolis of the Boston law firm Rogers, Powers, and Schwartz represented Mr. Martell. The firm focuses on employment and civil rights cases.

Mr. Margolis asked the town to pay for 179 hours of legal work, at a rate of $400 per hour. Judge Page reduced the number of hours allowed to 119, and reduced the rate to $300 per hour.

“The present case was not a discrimination action, with multiple plaintiffs against a large corporation; it was a dispute between a firefighter and his chief,” Judge Page wrote in her decision. “Also significant to this factor are the damages obtained by the plaintiff in relation to the fees sought,” the judge wrote. “Martell would have been further entitled to stipends for fiscal years 2009 and 2010, totaling $2,200. The total amount of fees sought, $71,600, are more than thirty-two times Martell’s damages.”