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    Police secretary seeks to sue mayor in civil rights case

    The lawyer for a Newton Police Department secretary who is suing the city filed a motion Monday to add Mayor Setti Warren personally as a defendant in the civil complaint, alleging he was involved in a conspiracy to bring false criminal charges against the woman.

    The motion cites sworn testimony from the city’s fired police chief, Matthew Cummings, saying that Warren was solely responsible for the decision to seek theft charges against Jeanne Sweeney Mooney, who was accused of stealing office funds and placed on paid administrative leave in September 2011. She was acquitted by a jury in May.

    “Certainly, the scope of the conspiracy now is much larger than we first believed,” said her lawyer, John F. Tocci, in an interview.


    The city fired back Monday with an opposing response calling the motion “devoid of factual allegations,” and describing it as based on the “self-serving” testimony of Cummings. He was fired by the mayor last fall, and Mooney’s lawsuit elsewhere accuses him of lying.

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    Mooney “is acutely aware that there is an upcoming mayoral election in Newton, and she is attempting to use this lawsuit and unfounded allegations against Mayor Warren in his individual capacity to smear him in an attempt to swiftly secure a settlement,” the city’s response states.

    Warren, who is running for reelection in November, declined to comment, directing questions to the city’s law department. Assistant City Solicitor Angela Buchanan Smagula said the city’s filing in opposition to the motion spoke for itself.

    No ruling had been made on Mooney’s request by Tuesday afternoon, according to online court records.

    Mooney’s federal civil rights lawsuit, filed in March, already names Warren in his official capacity, as well as the City of Newton, Cummings, Lieutenant Edward Aucoin, now retired, and a former Police Department employee, Vincent Nguyen. The city’s response to the new motion was filed on behalf of the city, Warren, and Aucoin; Cummings and Nguyen have their own lawyers.


    In his motion Monday, Mooney’s lawyer also added a claim of abuse of process against Warren, Cummings, and Aucoin.

    In their response, city attorneys said the claim “fails as a matter of law as Mayor Warren and Aucoin did not direct the criminal process, nor did they exert influence over it, and Plaintiff has failed to demonstrate an ulterior or illegitimate purpose.”

    The lawyer representing Cummings, Timothy M. Burke, said he also opposes Mooney’s request.

    “Frankly, I see no merit in it,” he said in an interview. However, Burke objected to the city’s characterization of his client’s testimony as self-serving, calling it instead “simply factual.”

    Mooney, who was acquitted on a charge of larceny over $250, contends that she was set up after she began complaining about Cummings in 2010. Warren fired Cummings in October for “conduct unbecoming,” after an investigation into Mooney’s allegations found, among other things, that Cummings had kicked her foot and swore at her.


    In seeking to add the mayor personally to the complaint, Tocci pointed to a sworn affidavit filed by Burke in June, in which Cummings said that on or about June 1, 2012, Warren told him that charges would be pursued against Mooney.

    “I did not act independently, and the final decision regarding the filing of the criminal complaint against the Plaintiff rested solely with Mayor Warren,” the affidavit by Cummings states.

    Tocci noted that about two weeks earlier, the city had received a $600,000 demand letter from Mooney outlining her charges against Cummings. In his motion, Tocci alleges that Warren’s decision to seek criminal charges was retaliatory.

    Tocci said the mayor was originally named in the lawsuit based on his official capacity as the city’s top administrator. The decision to name him personally, Tocci said, was based on the new evidence that allegedly shows he was actively involved in a conspiracy against his client. “Here, the difference is Setti Warren, the person, acted in an illegal manner,” Tocci said in an interview. “He’s one of the actors now.”

    In their filings to oppose the motion, however, city solicitors said the argument “lacks any element of logic,” and there are no facts beyond Cummings’s word — and even if the fired chief could be believed, they wrote, that still would not mean Warren participated in any conspiracy.

    “Even if Mayor Warren did mandate that criminal charges be initiated and signed the application for criminal complaint against Plaintiff himself (which he did not), there are no allegations or facts to support the notion that Mayor Warren was part of a common plan to frame Plaintiff or that he knew of any such plan and took affirmative steps to frame Plaintiff,” the response states.

    Mooney, who was offered her job back after her acquittal, has not returned to work, Tocci said, and is collecting sick pay. The last demand for damages in the lawsuit was $1.1 million, he said, but with no response from the city he expects to take the case to trial.

    Evan Allen can be reached at evan.allen@globe.com. Follow her on Twitter @evanmallen.