Cambridge Housing Authority v. Civil Service Commission

• Decision Date: 17 May 1979
• Citation: 389 N.E.2d 432,7 Mass.App.Ct. 586
• Parties: CAMBRIDGE HOUSING AUTHORITY v. CIVIL SERVICE COMMISSION et al. 1
• Court: Appeals Court of Massachusetts

Page 432

389 N.E.2d 432

7 Mass.App.Ct. 586

CAMBRIDGE HOUSING AUTHORITY v. CIVIL SERVICE COMMISSION et al. ¹

Appeals Court of Massachusetts, Suffolk.

Argued Feb. 21, 1979.

Decided May 17, 1979.

Arnold P. Messing, Boston (Barbara J. Rouse, Boston, with him), for plaintiff.

Henry P. Sorett, Cambridge, for Francis G. White.

Betty E. Waxman, Asst. Atty. Gen., for Civil Service Commission.

Before BROWN, GREANEY and DREBEN, JJ.

BROWN, Judge.

The plaintiff, Cambridge Housing Authority (CHA), brought this action in the nature of certiorari, pursuant to G.L. c. 249, § 4, as appearing in St.1973, c. 1114, § 289, for the purpose of reviewing proceedings held before the Civil Service Commission (commission).

In April, 1976, CHA's Board of Commissioners (board) voted to implement a plan of reorganization. This plan was submitted to CHA's new executive director, Lewis H. Spence. In May, 1976, purportedly as part of the reorganization plan, the board voted to abolish the position of director of maintenance, then held by Francis G. White. Notice of the proposed abolition was given to White, and a hearing was held by the board. The abolition was approved, and White was notified of the board's action. White then requested a hearing before the commission pursuant to G.L. c. 31, § 43(B ), as amended through St.1975, c. 557, § 1 (see now G.L. c. 31, § 43, as appearing in St.1978, c. 393, § 11). He alleged the action was not justified and was taken in bad faith. A hearing was held before a designated disinterested person (a hearing officer), see G.L. c. 31, § 43(B ), who summarized the testimony, made findings of fact, and recommended that the commission reverse the board's action and that White be reinstated in his position. In October, 1977, the commission apparently adopted the findings of the hearing officer and voted (by a vote of 3-2) to reverse the board's action. The commission ordered that White be reinstated "without loss of compensation or other rights." Pursuant to G.L. c. 249, § 4, the board filed a complaint in the Supreme Judicial Court seeking relief in the nature of certiorari. The case was transferred to the Superior Court. After a hearing a District Court judge sitting under statutory authority issued an order affirming the action of the commission. The board is now appealing from the ensuing judgment. There was no reversible error.

The relief sought in an action in the nature of certiorari is " 'to correct substantial errors of law apparent on the record adversely affecting material rights.' " Commissioners of Civil Serv. v. Municipal Court of the City of Boston, 369 Mass. 84, 90, 337 N.E.2d 682, 686 (1975), quoting from Sullivan v. Committee on Rules of the House of Representatives, 331 Mass. 135, 139, 117 N.E.2d 817 (1954). See Swan v. Superior Court, 222 Mass. 542, 546, 111 N.E. 386 (1916). As the facts found by the commission are final and conclusive, they cannot be reviewed or set aside by us. Ibid. Commissioner of Pub. Works v. Justice of the Municipal Court of the Dorchester Dist., 228 Mass. 12, 16, 116 N.E. 969 (1917). Tracht v. County Commns. of Worcester,318 Mass. 681, 686, 63 N.E.2d 561 (1945). See Selectmen of Wakefield v. First Dist. Court of E. Middlesex, 262 Mass. 477, 480, 160 N.E. 427 (1928). See also Selectmen of Framingham v. Civil Serv. Commn., 366 Mass. 547, 552, 321 N.E.2d 649 (1974). Thus, in these circumstances the issue on review in this court is simply whether the commission's findings were supported by substantial evidence on the record as a whole. See Bunte v. Mayor of Boston, 361 Mass. 71, 74, 278 N.E.2d 709 (1972).

General Laws c. 31, § 43, as in effect prior to St.1978, c. 393, § 11, protects persons employed by the Commonwealth and its subdivisions against removal or the abolition of their positions "except for just cause." Persons coming within the protection of G.L. c. 31, § 43(A ), as amended through St.1970, c. 72, § 1, who have their jobs abolished are entitled to a hearing before a member of the commission or a disinterested person designated by the chairman of the commission (G.L. c. 31, § 43(B )). The hearing officer reports his findings to the commission. "If the commission finds that the action of the appointing authority (here the board) was justified, such action shall be affirmed; otherwise, it shall be reversed and the person concerned shall be returned to his office or position without loss of compensation." G.L. c. 31, § 43(B ). Thus, the sole question before the commission in reaching its decision to reverse the action of the board was whether CHA's action was justified. See Sullivan v. Municipal Court of Roxbury Dist., 322 Mass. 566, 572-573, 78 N.E.2d 618 (1948), and cases cited. See also Murray v. Municipal Court of the City of Boston, 233 Mass. 186, 188-189, 123 N.E. 682 (1919); Mayor of Somerville v. District Court of Somerville, 317 Mass. 106, 121, 57 N.E.2d 1 (1944).

The hearing officer based his recommendations on the oral testimony presented by both parties. "Findings based on oral testimony will not be reversed unless plainly wrong." Mayor of Beverly v. First Dist. Court of Essex, 327 Mass. 56, 61, 97 N.E.2d 181, 184 (1951). See Selectmen of Dartmouth v. Third Dist. Court of Bristol, 359 Mass. 400, 403, 269 N.E.2d 449 (1971). We hold that there is no apparent error of law because the findings of the hearing officer, which were adopted by the commission, are supported by substantial evidence. Contrast School Comm. of Salem v. Civil Serv. Commn.,348 Mass. 696, 698, 205 N.E.2d 707 (1965).

The board clearly has the right to abolish a position it finds to be unnecessary and uneconomical. Any such abolition, however, must be undertaken in good faith and may not be done "without proper cause" or as a pretext for depriving a person of his job. See Mayor of Somerville v. District Court of Somerville, supra, 317 Mass. at 120-123, 57 N.E.2d 1. See also Commissioner of Pub. Works v. Justice of the Municipal Court of the Dorchester Dist., 228 Mass. at 16, 116 N.E. 969. "The abolition of an unnecessary position made in good faith plainly is the duty of an executive or administrative officer. One holding such a position, though efficient in the performance of his duties, may be removed simply because the position is no longer necessary, provided the removal is made in good faith, and the recital of that reason is not made the cover for some other unjustifiable motive." Gardner v. Lowell, 221 Mass. 150, 154, 108 N.E. 937, 938 (1915). Although the hearing officer concluded that "the evidence does not establish a quantum of bad faith, which, in itself, is sufficient to invalidate" the board's action, see Murray v. Municipal Court of the City of Boston, supra, he inferred that after the purported abolition of White's position it "remained (functionally) intact" and that the reorganization was "a mere pretext" to justify the removal...