Guard’s suit down to free speech ; Jurors will take up his case Monday [Concord Monitor (NH)]

Is Mark Jordan a man who always has to get the last word in an argument and never backs down from a perceived threat, as attorneys for the state of New Hampshire claim?

Or is the Manchester resident and former Marine a victim of powerful officials intent on punishing someone who was simply trying to make government more accountable, as his attorney says?

That is the question jurors will begin deliberating Monday morning at Merrimack County Superior Court.

Jordan, 43, sued the New Hampshire Division of Personnel and the Department of Corrections for $450,000 last year, alleging that a year-long suspension during a criminal investigation was effectively a wrongful termination and that his free speech rights had been violated.

He dropped the wrongful termination suit Wednesday, but the free speech suit remains and was the subject of yesterday's closing arguments.

"The bottom line is that he spoke when he wanted to, to whom he wanted to, and in whatever forum he wanted to, as publicly as he wanted to," Assistant Attorney General Lynmarie Cusack said in Merrimack County Superior Court yesterday.

But Chuck Douglas, Jordan's attorney, said the case is about the state's actions, not words.

"If you want to break someone, take their paycheck for a year," he said. "Take their health insurance away."

In March 2010, Jordan was involved in a fight with another corrections officer after work at the men's prison in Concord. During the subsequent investigation by state police, Jordan, then president of the union representing corrections officers, was suspended without pay or benefits. The suspension was eventually amended to five days. He was found not guilty of simple assault in February and returned to work in March.

The other officer, Sgt. Tom Messina, remained on the payroll.

Jordan was reimbursed for lost wages. But in testimony during the trial that has spanned two weeks, he said his credit was harmed, his marriage and relationship with his 8-year-old daughter were strained and his health suffered because of the loss of pay, which forced him to refinance his house and borrow from his in-laws.

The loss of medical insurance came at a particularly sensitive time for Jordan, who had suffered from herniated disks while restraining an inmate in March 2009 and had recently been diagnosed with an unrelated congenital neurological condition that leaves his head particularly vulnerable to injury.

State officials testified that once the criminal investigation had begun, they had no say in how long the suspension would last and did not interfere. They also encouraged him to apply for the federal Family and Medical Leave Act, which might have provided up to three months of care for him and his family. He might have qualified, officials said, because of his neurological disorder, which causes symptoms including painful headaches.

The trial, which has been marked by frequent objections, sidebar conferences and participants' visible frustration with one another, has lasted several days longer than expected.

Jordan has worked as a corrections officer for more than 18 years.

During the trial, Jordan has argued that he and Wrenn had a close and healthy working relationship until budget constraints lead to poor working and safety conditions at the state's prisons in 2009.

After a couple of profanity-laced, angry phone calls, that relationship was, in effect, over, Jordan testified. Wrenn has denied that he ever swore at Jordan or any of his employees.

Around the same time, Jordan said he became increasingly concerned about security issues including Senate Bill 500, which allowed for earlier release of prisoners. Jordan criticized Wrenn and the department several times on radio shows, in newspapers and to state legislators.

But, because he was so embarrassed that the news reports often mentioned his assault charge and suspension, he spoke to the press less than he would have, Douglas argued.

"It's called the politics of personal destruction," Douglas said. "You smash them personally, that way the message doesn't come through."

Moreover, Douglas claims Steve Puckett, the state trooper assigned to Jordan's investigation, interfered with Jordan's ability to speak out because he monitored what Jordan said on the radio.

Because state law says that state employees must be able to speak freely, Douglas said, and Jordan's silence, combined with the physical and emotional pain inflicted by the state, needs to be answered for. If jurors find that either the Department of Corrections or the Division of Personnel interfered with Jordan's ability to speak freely, they can award damages.

Cusack countered that the suspension did not stop Jordan from filing grievances, meeting with workers and even inviting the press to one of his court appearances.

If jurors apply their common sense, Cusack said in her closing argument, they would conclude Jordan wouldn't have found himself under such strain if only he had restrained himself. If he hadn't goaded, the entire suspension would have been avoided, she said.

"This case started because of workplace violence, that's the reason he was suspended," Cusack said. "It starts with a punch."

(Molly A.K. Connors can be reached at 369-3319 or [email protected].)