Bielawski v. Personnel Adm'r of Div. of Personnel Admin.

• Decision Date: 17 April 1996
• Citation: 422 Mass. 459,663 N.E.2d 821
• Parties: Francis M. BIELAWSKI v. PERSONNEL ADMINISTRATOR OF the DIVISION OF PERSONNEL ADMINISTRATION & others. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 821

663 N.E.2d 821

422 Mass. 459

Francis M. BIELAWSKI v. PERSONNEL ADMINISTRATOR OF the DIVISION OF PERSONNEL

ADMINISTRATION & others. ¹

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Jan. 11, 1996.

Decided April 17, 1996.

CIVIL ACTION commenced in the Superior Court Department on September 19, 1986.

The case was heard by Charles F. Barrett, J., on a motion for summary judgment.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Gregory V. Sullivan, for plaintiff.

Peter Sacks, Assistant Attorney General, for Personnel Administrator of the Division of Personnel Administration & another.

John V. Woodard, Boston, for Board of Selectmen of Dedham.

Before LIACOS, C.J., and ABRAMS, LYNCH, O'CONNOR and FRIED, JJ.

FRIED, Justice.

This action arises from five separate decisions by the board of selectmen of Dedham (selectmen) to "bypass" the plaintiff pursuant to G.L. c. 31, § 27 (1994 ed.), for a promotion from patrolman to sergeant. The plaintiff complains that the actions of the appointing authority and the Civil Service Commission (commission) in regard to these bypasses violated the requirements of the civil service statute, G.L. c. 31, and infringed his "civil rights" as protected by the State and Federal Constitutions. A Superior Court judge granted the defendants' motion for summary judgment in December, 1993. The plaintiff appealed from this decision. We transferred the case here on our own motion, and now affirm.

I

The plaintiff has been employed by the town of Dedham as a permanent police officer since 1978. On April 19, 1986, the Department of Personnel Administration conducted an examination to establish a list of eligible candidates for promotion to the rank of sergeant in the Dedham police department. The plaintiff received an 87, the highest score on the exam. The personnel administrator then certified a list of candidates to the selectmen. The plaintiff appeared on the top of the list. The list also contained the following persons and scores as they appeared on the certified list: Richard McCarthy, 85; Anthony DeFalco, 84; Edward St. George, 84; Michael Weir, 84; and Richard Keane, 83.

On September 11, 1986, the selectmen voted to promote Weir to the position of sergeant. ² General Laws c. 31, § 27, provides that, when a candidate who appears higher on the certified list is bypassed for appointment in favor of another candidate, the appointing authority must submit a statement of reasons for the bypass to the personnel administrator. The selectmen explained that it promoted Weir because of his extensive volunteer work in organizing safety classes. On September 19, 1986, the plaintiff filed a complaint in the Superior Court challenging the selectmen's justification for their bypass decision. The plaintiff argued that the selectmen failed to analyze the candidates' personnel files in making their selection, that they did not interview the candidates, and that they made their selection arbitrarily. The parties agreed to stay this proceeding pending the commission's resolution of the issue. The personnel administrator approved the selectmen's reasons for the bypass. On November 18, 1987, the commission voted to affirm the personnel administrator's decision, and on December 31, 1987, the plaintiff amended his complaint in the Superior Court to include a challenge to the commission's affirmance as a violation of G.L. c. 31, § 44, and G.L. c. 30A, § 14(7)(a )-(g ).

On April 13, 1988, the selectmen voted to bypass the plaintiff again. The selectmen explained that McCarthy, the officer whom they had promoted, was the best qualified candidate because of his union activities, his community work as a deputy sheriff, and because this promotion would improve morale in the police department. The personnel administrator again accepted the selectmen's reason for bypass. The plaintiff appealed from this determination to the commission pursuant to G.L. c. 31, § 2(b ). While this appeal was pending, the selectmen bypassed the plaintiff a third time on September 2, 1988, and a fourth and fifth time on May 13, 1989, thereby promoting all of the six candidates on the 1987 certified list except the plaintiff. On each occasion, the plaintiff appealed from the bypass to the commission pursuant to G.L. c. 31, § 2(b ). ³

On March 11, 1991, the commission overturned the personnel administrator's affirmance with respect to the second bypass. The fourth and fifth bypasses, although they had taken place, were not before the commission at that time. The commission stated that "the reasons for his non-selection range from the irrelevant to the ridiculous" and that

"[a]fter carefully reviewing the voluminous testimony and evidence presented in this matter, the Commission concludes that the [plaintiff's] bypass was unjustified and should be overturned.... Accordingly, the Commission directs that [the plaintiff]'s eligibility for Sergeant be revived, if necessary, and that he be placed at the top of the next certification of candidates for the position of Dedham Police Sergeant; that the Town of Dedham be directed to refrain from using impermissible reasons for bypassing [the plaintiff] for promotion to Sergeant; and that if and when he is promoted to Sergeant, his promotion date be made retroactive to April 13, 1988, the effective date of Officer McCarthy's promotion to Sergeant." ⁴

In November 14, 1991, the commission then dismissed the plaintiff's appeal regarding the fourth and fifth bypass stating that its decision regarding the second bypass had disposed of the issues raised in these appeals, presumably because the remedy it had chosen--placement at the top of the next certification of candidates together with retroactive seniority when and if the plaintiff is selected--could only operate prospectively on selections that had not yet been made. ⁵ In 1995, the selectmen promoted the plaintiff to the rank of sergeant retroactive to April 13, 1988. ⁶

As noted above, the original complaint and the first amended complaint challenged only the first bypass. In December, 1991, ⁷ the plaintiff sought leave to amend his complaint a second time to seek review of the commission's actions regarding the second through fifth bypasses. The plaintiff also sought to add a claim pursuant to 42 U.S.C. § 1983 (1988), alleging that the bypasses violated his "civil rights." ⁸ The defendants moved for summary judgment on the ground that the plaintiff's claims as amended are untimely pursuant to G.L. c. 249, § 4, and alternatively that the commission's decisions are supported by substantial evidence and free from errors at law. The Superior Court judge granted the defendants' motion, stating that the court lacked jurisdiction to address the claims appealing the commission's decisions and that, even if the court's jurisdiction had been properly invoked, the commission had provided the plaintiff with all the relief its statutory authority allows. The court also granted summary judgment for the defendants in respect to the plaintiff's constitutional claims, ruling that no constitutionally protected property interest was implicated in the selectmen's decisions.

II

The Superior Court judge was correct that that court lacked jurisdiction to review the decisions of the commission. The plaintiff's second amended complaint alleged that the appointing authority violated G.L. c. 31, § 27 (bypass provision), ⁹ and sought judicial review of the commission's decisions concerning all five bypasses pursuant to G.L. c. 31, § 44 (providing for judicial review of a § 42 or § 43 proceeding) and G.L. c. 30A, § 14(7)(a )-(g ) (judicial review of an agency's final decision). From 1986 through 1991, the time period during which the plaintiff filed his original complaint and amended complaints, his asserted grounds for judicial review did not afford him the right to seek review of the commission's decision in the Superior Court. First, the provision of the civil service statute invoked by the plaintiff, § 44, provided for judicial review of §§ 42 and 43 hearings only. ¹⁰ See Goldblatt v. Corporation Counsel of Boston, 360 Mass. 660, 663, 277 N.E.2d 273 (1971). Here the plaintiff is complaining of a violation of § 27 by the appointing authority and has obtained the commission's review pursuant to § 2(b ). Second, even if this had been a petition for § 44 review, at the time the plaintiff filed his complaint and amended it, such an action was required to be filed in either the Municipal or District Courts. Nor could the commission's decisions be reviewed pursuant to the State Administrative Procedure Act, G.L. c. 30A, § 14, since the definition of " 'Agency' ... does not include ... the civil service commission." G.L. c. 30A, § 1(2). See Mayor of Revere v. Civil Serv. Comm'n, 31 Mass.App.Ct. 315, 327, 577 N.E.2d 325 (1991).

The appropriate method of review in this circumstance would have been for the plaintiff to seek relief in the nature of certiorari. See G.L. c. 249, § 4 (1994 ed.) (correct errors of law where statute provides no other method of review); Goldblatt, supra at 663, 277 N.E.2d 273; Flynn v. Civil Serv. Comm'n, 15 Mass.App.Ct. 206, 207 & n. 3, 444 N.E.2d 407 (1983). ¹¹ This is not an empty formality, but affects the substance of a reviewing court's authority. On a writ of certiorari, the court's review "is confined to the record and is for the purpose of correcting legal error, [and therefore] the inquiry about the presence or absence of genuine issues of material fact, germane to summary judgment procedure, is inappropriate.... [The reviewing court] need only inquire whether the commission's decision was 'legally tenable and supported by substantial evidence on the record as a whole.' " Gloucester v. Civil Serv. Comm'n, 408 Mass. 292, 297, 557 N.E.2d 1141 (1990), quoting Commissioner of Health & Hosps. of Boston v. Civil Serv. Comm'n, 23 Mass.App.Ct. 410, 411, 502 N.E.2d 956 (1987). ...