City of Cambridge v. Civil Service Com'n

• Decision Date: 05 August 1997
• Docket Number: No. 96-P-175,96-P-175
• Citation: 43 Mass.App.Ct. 300,682 N.E.2d 923
• Parties: CITY OF CAMBRIDGE v. CIVIL SERVICE COMMISSION & another. 1
• Court: Appeals Court of Massachusetts

Page 923

682 N.E.2d 923

43 Mass.App.Ct. 300

CITY OF CAMBRIDGE v. CIVIL SERVICE COMMISSION & another. ¹

No. 96-P-175.

Appeals Court of Massachusetts,

Middlesex.

Argued June 9, 1997.

Decided Aug. 5, 1997.

Birge Albright, Cambridge, for City of Cambridge.

Loretta M. Smith, Assistant Attorney General, for Civil Service Commission.

Donna DeSimone Buckley, Weymouth, for intervener.

Before KASS, SMITH and LAURENCE, JJ.

KASS, Justice.

On the basis of a competitive examination, Leslie Langston had qualified in December, 1992, for appointment as a police officer in Cambridge. The appointing authority of that city developed some adverse facts about Langston in a record check and obtained permission from the administrator of the State Department of Personnel Administration (the "Administrator") to "bypass" her in accordance with G.L. c. 31, § 27. The Civil Service Commission reversed and ordered that the city re-certify Langston. A judge of the Superior Court, who considered the case under the State Administrative Procedure Act, G.L. c. 30A, § 14, concluded that the commission had acted within its authority and discretion, and affirmed the commission's decision. We reverse.

1. Facts. What the city's background check uncovered was that Langston, in 1984, at age 20, had admitted to firing a sawed-off shotgun within 500 feet of a residence, in violation of G.L. c. 269, § 12E. A judge of the Roxbury District Court found her guilty, imposed a $50 fine, and placed her on probation. In fact, it was Langston's boyfriend who had fired the shotgun. She had invented her role to protect the boyfriend from a likely conviction of unlawful possession of a firearm, an offense that carried a mandatory penalty of one year of incarceration. In support of that version of events, Langston fibbed to the police and to a judge of the Roxbury District Court.

Langston's father, a detective in the Boston Police Department, became aware of his daughter's conviction and spoke to her about it. She explained to him why she had taken responsibility for the weapon discharge, and he explained to her that she had been foolish because now she had a criminal record. He advised that she had better try to have the court record sealed. To that end, Langston came before a second judge of the Roxbury District Court, to whom she explained that her previous account had not been true and the reason for her mendacity. We do not have the benefit of a record of those proceedings but their upshot was that the judge vacated Langston's conviction and sealed her record. While thereafter not available to the public, the raw data in that record remains accessible to the police and the 1984 episode, thus, became known to the police commissioner of Cambridge when his department screened Langston as a candidate for appointment. As to this lingering force of sealed records, see Commonwealth v. Roberts, 39 Mass.App.Ct. 355, 356, 656 N.E.2d 1260 (1995).

Five years later, Langston was the subject of a criminal complaint of assault and battery upon a woman (against whom Langston cross-complained) arising out of a domestic quarrel that involved her child and her then boyfriend. The case went to mediation, was continued, and ultimately dismissed.

2. Administrative action. As a result of Langston's performance in the civil service examination, the Administrator had certified to the city of Cambridge that Langston was eligible for appointment as a police officer. See G.L. c. 31, § 25. Cambridge, through its city manager, requested permission from the Administrator pursuant to G.L. c. 31, § 27, not to appoint Langston, who was apparently the highest eligible candidate. This is a procedure known as a "bypass." See Bielawski v. Personnel Administrator of the Div. of Personnel Admn., 422 Mass. 459, 460, 663 N.E.2d 821 (1996); MacHenry v. Civil Serv. Commn., 40 Mass.App.Ct. 632, 634-635, 666 N.E.2d 1029 (1996). The Administrator initially rejected the city's request. The city manager pressed the matter, urging that Langston's "willingness to lie, for personal reasons, in the very type of proceedings in which she would be constantly testifying as a police officer," and the later involvement with violence in a personal dispute made her a poor risk as a police officer. The Administrator, by letter dated February 16, 1994, concurred in the bypass.

Thereupon, Langston appealed to the Civil Service Commission under G.L. c. 31, § 2(b ). The commission concluded that "the bypass was arbitrary and capricious," and ordered that Langston's "eligibility is to be revived." As to the shooting incident, the commission regarded it as "stale, having taken place almost ten years prior to her consideration as a police officer, when [Langston] was twenty years old." So far as the 1989 domestic violence episode was concerned, the commission "note[d] that no allegation of assault and battery was ever sustained against [Langston] and the entire dispute was satisfactorily resolved through mediation."

"Weighing against the concerns expressed by the Appointing Authority [the city manager]," the commission's decision continues, is Langston's "exemplary employment record as established by numerous and detailed letters of support from prior and current employers spanning a seven-year period." Langston had worked as a secretary, an administrative assistant, receptionist, staff assistant, and administrator, largely in medical settings such as Harvard University Health Services and Cambridge Hospital. ² "We believe," the commission wrote in its decision, "that [Langston's] work history from 1987 to 1994 out-weighs the concerns voiced by the Appointing Authority as a result of incidents in 1984 and 1989. If any individual deserves a second chance, it is surely [Langston]."

From the commission's decision, the city took its appeal under G.L. c. 31, § 44, which provides that proceedings "shall, insofar as applicable, be governed by the provisions of [G.L. c. 30A, § 14]." G.L. c. 31, § 44, as amended by St.1992, c. 133, § 351. The Superior Court judge who reviewed the administrative record concluded that the commission had applied the proper standard of review and that its conclusion was supported by substantial evidence. This third level of appeal followed.

3. Correctness of legal standard applied by the commission. For the commission to have described the bypass as arbitrary and capricious was patently mistaken. A decision is arbitrary and capricious when it lacks any rational explanation that reasonable persons might support. Attorney Gen. v. Sheriff of Worcester County, 382 Mass. 57, 62, 413 N.E.2d 722 (1980). Howe v. Health Facilities Appeal Bd., 20 Mass.App.Ct. 531, 534, 481 N.E.2d 510 (1985). T.D.J. Dev. Corp. v. Conservation Commn. of N. Andover, 36 Mass.App.Ct. 124, 128-129, 629 N.E.2d 328 (1994). The city was hardly espousing a position devoid of reason when it held that a demonstrated willingness to fudge the truth in exigent circumstances was a doubtful characteristic for a police officer. Police work frequently calls upon officers to speak the truth when doing so might put in question a stop or a search or might embarrass a fellow officer. It requires no strength of character to speak the truth when it does not hurt.

The commission, however, was not bound to declare that the city had acted arbitrarily and capriciously. Rather, the governing statute, G.L. c. 31, § 2(b ), requires the commission to find whether, on the basis of the evidence before it, the appointing authority has sustained its burden of proving that there was reasonable justification for the action taken by the appointing authority. ³ Mayor of Revere v. Civil Serv. Commn., 31 Mass.App.Ct. 315, 320 n. 10, 321 n. 11, 322 n. 12, 577 N.E.2d 325 (1991). See Commissioners of Civil Serv. v. Municipal Court of the City of Boston, 359 Mass. 211, 214, 268 N.E.2d 346 (1971); Murray v. Second Dist. Court of Eastern Middlesex, 389 Mass. 508, 516, 451 N.E.2d 408 (1983); Gloucester v. Civil Serv. Commn., 408 Mass. 292, 297, 557 N.E.2d 1141 (1990); Watertown v. Arria, 16 Mass.App.Ct. 331, 334, 451 N.E.2d 443 (1983); Dedham v. Civil Serv. Commn., 21 Mass.App.Ct. 904, 906, 483 N.E.2d 836 (1985). That standard gives the commission some scope to evaluate the legal basis of the appointing authority's action, even if based on a rational ground. To illustrate, while it might be rational for an appointing authority to consider a candidate's twelve year old conviction of assault and battery, it would not be a proper consideration if a statute or regulation existed that prohibited consideration by public employers of a conviction that occurred more than ten years prior to the time of the appointment decision. "Justified," in the context of review, means "done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind, guided by common sense and by correct rules of law." Selectmen of Wakefield v. Judge of First Dist. Court of Eastern Middlesex, 262 Mass. 477, 482, 160 N.E. 427 (1928). Commissioners of Civil Serv....