Board of Selectmen of Framingham v. Civil Service Commission

• Decision Date: 24 December 1974
• Citation: 321 N.E.2d 649,366 Mass. 547
• Parties: BOARD OF SELECTMEN OF FRAMINGHAM v. CIVIL SERVICE COMMISSION et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 649

321 N.E.2d 649

366 Mass. 547

BOARD OF SELECTMEN OF FRAMINGHAM v. CIVIL SERVICE COMMISSION et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 9, 1974.

Decided Dec. 24, 1974.

Robert H. Quinn, Atty. Gen. (Edward D. Kalman, Asst. Atty. Gen., with him), for the Commissioners of Civil Service.

Daniel D. Levenson, (Jonathan J. Margolis, Boston, with him), for intervenor, Robert Ablondi.

Arthur M. White, Framingham, for the Bd. of Selectmen of Framingham.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY and KAPLAN, JJ.

KAPLAN, Justice.

The Civil Service Commission (commission) appeals from a decision of a judge of the Superior Court which, reversing the commission, suspends the intervener, a tenured policeman of the town of Framingham, until he conforms to a regulation of the police department concerning the hair styles that police officers in that town are entitled to affect. The Framingham board of selectmen (board), as 'appointing authority,' suspended the policeman for violation of the regulation; on review the commission reversed the board; on certiorari the judge of the Superior Court reversed the commission and affirmed the board's suspension order. We agree with the judge that the ground on which the commission went was wrong. The ground was that suspension cannot properly be for an indefinite period. But we disagree with the judge as to the disposition of the case. The commission, to which is committed in the first instance under the civil service law the question whether the board's order of suspension was 'justified,' did not decide that issue and render an incomplete and unclear decision, which in turn infected and confused the decision of the judge. Accordingly, there must be a reversal for remand to the commission.

In May, 1971, upon recommendation of the chief of police, the board adopted Rule 79A of the Rules and Regulations of the Framingham police department, reading as follows: 'All officers shall upon reporting to duty be clean shaven, hair shall be neatly trimmed and not overhanging a button shirt collar, the neck shall be kept clean shaved, side burns may not extend below the bottom of the ear and shall be straight and neatly trimmed and not allowed to flare out from the ear. Beards and goatees shall not be worn. Neatly trimmed mustaches will be allowed.' (As adopted, the rule was somewhat different from that proposed by the chief of police. He had sought to ban moustaches, but that provision was changed when one of the selectmen objected that he could not in good faith vote to eliminate moustaches since he himself had worn one for many years.)

On July 21, 1972, one Robert Ablondi, a patrolman with nearly five years' service, was charged by the board with violating Rule 79A, and a hearing was held before it pursuant to G.L. c. 31, § 43(a), as amended through St.1970, c. 72, § 1. The board concluded that Ablondi had allowed his hair to overhang his collar by about one inch, and ordered him suspended for 'just cause' until he complied with the rule. ¹

Ablondi requested a hearing before the commission under § 43(b), as amended through St. 1970, c. 72, § 2, which provides in this connection that '(i)f the commission finds that the action of the appointing authority was justified, such action shall be affirmed; otherwise, it shall be reversed . . ..' At a hearing held before Mr. Albert R. Mezoff, a hearing officer of the commission, on October 16, 1972, Ablondi conceded his noncompliance with the rule, but attacked the power of the board to adopt it, contending that it was irrelevant to the performance of police duties, infringed his personal liberty, and was unconstitutional. The hearing took the following course. Five witnesses were heard, the chief of police, two members of the board, Ablondi himself, and an 'expert' on his behalf. The chief of police testified that the primary reason for his opposition to long hair was that it represented a potential physical danger to a policeman in the performance of his duty: an assailant might pull his hair; he might have difficulty in using a gas mask. There was contrary testimony that neither possibility was in practice serious. The police chief stated that another reason for adopting the rule was to insure that the police presented a neat public image. He denied that he himself had any feeling against long hair, but he said that although lay people could look neat with long hair, policemen could not. It was also asserted that complaints had been received from the public about longhaired policemen, but admittedly none was in writing. Ablondi testified that much of his work as a policeman was with young people and that his good relations with them were due at least in part to his hair style.

Upon this record, the hearing officer found as the main 'subsidiary facts,' '(t)hat the basis of the adoption of Rule 79A rested solely on appearance and had no relationship to the performance of police duties' (finding No. 5), and '(t)hat no compelling interest was shown here by the Appointing Authority for the purpose or justification of the adoption of Rule 79A.' (Finding No. 12). ² On his findings the hearing officer was 'inclined to conclude' that the appointing authority had 'no just cause' for suspension, as the rule 'had no valid or rational basis related to the performance of police work.' He went on to say that if the commission felt that it had no authority or jurisdiction to pass on the validity of the rule, then just cause had been established. However, the hearing officer had a problem with the punishment that had been imposed. He thought that a suspension without a definite limit of time was in any case improper, and he therefore recommended reversal of the board's order and reinstatement of the employee.

The report of the hearing officer having been delivered to the commission for action, the commission in its decision of December 19, 1972, adopted finding No. 5, that the basis of the rule rested solely on appearance and had no relation to the performance of police duties. But the commission omitted any reference to finding No. 12, that no compelling interest was shown by the board; the commission neither adopted that finding nor made a contrary finding. Neither did it comment on its authority or lack thereof to declare the rule invalid, or state any conclusion as to whether the board's action was 'justified' in substance. Rather it held only that the suspension, being for an indefinite period of time, was improper, and ordered Ablondi reinstated on that ground. ³

The board then petitioned the Superior Court for a writ of certiorari under G.L. c. 249, § 4 (before amendment by St.1973, c. 1114, § 289), to set aside the commission's order and confirm Ablondi's suspension. Ablondi was admitted to the proceedings as an intervener. The judge on consideration of the return to the writ held that the suspension was not improper by reason of its indefinite term, so as matter of law the commission should not have set it aside on that ground. But going further, he concluded that the commission had by implication found the suspension for violation of the rule 'justified' apart from the question of the form of the suspension order, even though the commission had not explicitly said so. The judge also expressed his favorable opinion about the validity of the rule, as against the challenge that it infringed on a constitutionally protected right to wear one's hair as one pleased. The writ accordingly issued and the board's order was reinstated.

We agree with the judge of the Superior Court that there was no ground in law for the commission's holding the suspension order to be improper solely because it lacked a definite date of termination. (Indeed Ablondi himself does not argue in his brief that the punishment would be irregular if just cause were shown.) Whether suspension for a completed and noncontinuing delict must always have a fixed duration, we are not called on to decide. But we see no necessary impropriety in suspending an officer for so long as he persists in a violation that is going on from day to day; here a suspension of fixed duration might well seem inapt, for further hearings and further suspensions would be in the offing, unless, indeed, the officer by sitting out a single suspension could earn future immunity from discipline for the offense. In Mayor of Newton v. Civil Serv. Commn., 333 Mass. 340, 343--344, 130 N.E.2d 690, 692 (1955), the court described a suspension as 'a temporary withdrawal or cessation . . . as distinguished from permanent severance,' quoting from Bois v. Mayor of Fall River, 257 Mass. 471, 472, 154 N.E. 270 (1926); it said also, quoting from Commissioner of Labor & Indus. v. Downey, 290 Mass. 432, 434, 195 N.E. 742 (1935), that '(s)uspension imports the possibility or likelihood of return to the work when the reason for the suspension ceases to be operative. Dismissal imports an ending of the employment.' Thus the gist of 'suspension' is that the employee still has a chance to return to work and is not foreclosed. An indefinite suspension with return to work at the complete discretion of the appointing authority might indeed be bad as providing cover for what was in truth a termination of employment, but that is not the present case. It has been argued that St. 1969, c. 45, § 1, codified at G.L. c. 31, § 1, has made some change by defining 'suspension' as the 'temporary, involuntary separation from service for just cause,' but that definition is compatible with what has been said, and it does not appear that the statute was intended to alter the existing view of 'suspension.'

However, the judge's ultimate ruling--that Ablondi deserved suspension on the merits--was not properly founded. On certiorari the judge is not to make independent findings of fact where the agency has made none, any more than he may reverse or revise a decision of the agency merely because of a...