NEPBA ATTORNEY WINS ARBITRATION FOR TYNGSBORO SERGEANT

27 Jan

NEPBA ATTORNEY WINS ARBITRATION FOR TYNGSBORO SERGEANT

From the Lowell Sun (1/26/25 )

Fired sergeant wins arbitration battle. Arbitrator orders Bourque’s reinstateinent, full compensation; civil lawsuit pending

BY AARON CURTIS ACURTIS@LOWELLSUN.COM

TYNGSBORO >> A former Tyngsboro Police sergeant has emerged victorious in an arbitration hearing against the town, with an arbitrator ruling that the town lacked just cause for his termination in November 2021.

Mark Bourque, a 27-year veteran of the department, was fired over perceived misconduct and criminal charges related to prescriptions he was written by a physician assistant he identified as a close friend. The charges ultimately did not hold up in court.

After seven days of testimony that took place last year, arbitrator Richard Boulanger issued a nearly 50-page decision earlier this month ordering Bourque’s reinstatement and full compensation for lost wages, benefits, overtime, and detail opportunities with interest. Gary Nolan, representing the New England Police Benevolent Association Local 8A Tyngsboro Police Supervisors Union on behalf of Bourque, said that the comprehensive back pay award, including lost details, overtime, wages, and interest was notably broad. “In my experience, such awards are reserved for cases where employers acted with malice or were particularly unfair,” Nolan said by email.

Nolan, who described the town’s treatment of Bourque as “abhorrent and avoidable,” added that they will be calculating the amount owed to Bourque and expect the sum to be “significant.” He said the lawsuit can compensate Bourque for such things as “damage to his reputation, loss of outside employment, emotional distress, attorneys fees, as well as punitive damages against the town and individuals.”

When asked about Bourque’s thoughts on resuming his career with the Tyngsboro Police Department, Nolan said, “Mark’s plan is to return to Tyngsboro asap.”

“The arbitrator concluded that Mark was prescribed medication for legitimate medical needs, including job related injuries, and that his treatment was both reasonable and necessary,” Nolan wrote. “The arbitrator fully rejected every allegation levied by the town. Not a single alleged violation was upheld.”

In a statement provided by Town Manager Colin Loiselle, the town “vehemently disagrees” with the arbitrator’s decision but “respects the process and will respond as appropriate in accordance with relevant laws.”

Loiselle said the Select Board is scheduled to meet in executive session on Monday evening to discuss their next steps. He added that the town has the legal option to appeal the decision.

With the arbitration ruling handed down, Bourque still has a civil lawsuit pending in Middlesex Superior Court, the allegations of which are directly related to the arbitration case. Bourque is seeking $1.175 million in damages, naming the town, former Tyngsboro Police Chief Richard Howe, and former Town Manager Matthew Hanson (whose title was town administrator at the time of Bourque’s departure) as defendants, while highlighting claims of wrongful termination.

Timothy Burke, Bourque’s attorney in the civil case, issued a statement saying, “Mark Bourque was and remains an excellent police officer. He was retaliated against for speaking out about legitimate issues within the Department. It was clear to the arbitrator that he deserved better from those in command.”

In the civil complaint filed by Burke, it states Bourque has undergone multiple surgeries due to on-duty injuries and he suffers from chronic pain, for which he was medicated.

According to the complaint, in April 2020, during a multihour flight in the midst of the COVID-19 pandemic, Bourque sustained a muscle strain and had a telehealth appointment with Merrimack Valley Internal Medicine Group. He requested a Xanax refill from a nurse practitioner, who found previous prescriptions from John McDonald, a physician assistant at Lowell General Hospital. The complaint notes that Bourque sought McDonald’s help for various medical issues related to his employment, including post-surgery treatment.

The nurse practitioner found no current Xanax prescription in Bourque’s file and learned that McDonald’s prescriptions issued for Bourque had not been approved by McDonald’s supervising physician, as required. This led to a referral to the State Police for investigation.

According to documentation from the Middlesex District Attorney’s Office, Bourque told police in May 2020 that McDonald, his best friend, provided him with prescriptions out of convenience for several years. These included prescriptions for antibiotics and the opioid Percocet, for example, given either at the hospital or while meeting in public. He explained he needed prescriptions to manage his pain and continue working.

According to the DA’s office, pharmacy records revealed that McDonald wrote 54 prescriptions for Bourque between 2016 and 2020, including for the controlled substances oxycodone, alprazolam, and lorazepam. It also states McDonald, who was fired from LGH, had written prescriptions for four nurses who were co-workers at the hospital without first treating them in a clinical setting.

The arbitrator’s ruling said that the town argued Bourque, in addition to improperly obtaining the medication, overmedicated himself, endangering the community, himself, and other officers. They alleged that his overuse of the drugs inhibited his ability to properly perform his duties as a member of the Northeastern Massachusetts Law Enforcement Council SWAT team.

The ruling stated, however, that law enforcement members working with Bourque, including Howe, testified during the arbitration hearing that they never saw Bourque showing signs of impairment. A captain with NEMLEC, who supervised Bourque, said he had “never observed him to be anything other than alert, engaged, and ready for all SWAT operations he was involved in.”

The civil complaint states that Bourque, who had no previous disciplinary issues, said he was unaware the prescriptions he received from McDonald were not reviewed by a supervisor or documented in his patient chart. Additionally, the town had previously relied on McDonald’s medical notes for Bourque’s chronic pain treatment, with instances dating back to 2008. On one occasion, the complaint states a deputy chief and other police supervisors witnessed McDonald administer a cortisone shot to Bourque at the police station.

Bourque, as well as McDonald, were subsequently charged with conspiracy to violate drug laws by distributing a Class B drug.

Due to the allegations, Howe -who retired last October- recommended Bourque’s termination. According to the complaint, Bourque believed the recommendation was retaliatory due to Howe’s perceived animosity toward Bourque and his role as a union official. Bourque routinely engaged in contested negotiations and union-related grievances involving Howe. According to the complaint, these conflicts resulted in verbal confrontations between the two.

The complaint also references a departmentwide survey from around 2018, which added to the bubbling animosity Howe allegedly felt toward Bourque. For the survey, the complaint states Bourque authored a 15-page report detailing his concerns and complaints about leadership standards, including critical comments about Howe and his actions as head of the department.

In December 2020, the Select Board voted 4-1 to delay any disciplinary action against Bourque until the court’s proceedings concluded. In February 2021, the criminal charge against Bourque was dismissed following a nolle prosequi issued by the DA’s office.

It was later determined by the union that the DA’s office had informed Howe of this decision, finding that Bourque’s medication was for a legitimate medical need and part of a broader treatment program, mostly occurring in a hospital setting, and there was no probable cause for a criminal complaint. However, the civil complaint states that Howe kept this information secret from Bourque, the union, and some members of the Select Board.

Rather than reporting the DA’s decision, Hanson, after consulting with Howe and then­ Deputy Police Chief Shaun Woods, told the Select Board, “The DA withdrew the current complaint because the case is not yet complete,” according to the civil complaint.

It goes on to allege that Howe then influenced prosecutors to reissue a second complaint against Bourque for conspiracy to violate drug laws. In July 2023, a criminal trial in Woburn District Court concluded with a judge ruling in Bourque’s favor.

As for the initial information from the DA’s office that was withheld, the civil complaint states that this was released after Bourque’s firing and only after the union threatened to file a complaint with the State Labor Board.

“If it had been disclosed and shared with the union and the board when it was received by the chief, it is very likely that the town would not be in this difficult position, and that Sgt. Bourque and his family, and frankly the town’s taxpayers, would not have been put through hell,” Nolan said in a statement to The Sun.

According to the civil complaint, the town stated it did not hand over the DA’s analysis because it was “not in anyway relevant to the police chief’s recommendation or the affairs investigation.”

When asked for further clarification on why the information was withheld, Loiselle said that “due to the nature of the matter and the pending civil complaint” he was limited in what he could say.

The civil complaint goes on to claim that Howe made “numerous derogatory and slanderous comments to Select Board members, allegedly calling Bourque a “drug addict” and claiming he responded to calls while under the influence of narcotics.

Despite Bourque’s exoneration, the complaint additionally states Howe denied issuing his license to carry firearms. Woods, Tyngsboro’s current police chief, also said he would not reinstate Bourque’s license to carry, according to the complaint, allegedly saying, “It’s not about innocence and guilt with Mark, he mixed all those drugs together and went to rehab.”

Court documents indicate that the civil case would be resolved, and a judgment issued, by Oct. 19, 2026.

Follow Aaron Curtis on X, formerly known as Twitter, @aselahcurtis