City of New Bedford v. Civil Service Commission

• Decision Date: 08 August 1978
• Parties: CITY OF NEW BEDFORD et al. v. CIVIL SERVICE COMMISSION et al.
• Court: Appeals Court of Massachusetts

Page 1014

378 N.E.2d 1014

6 Mass.App.Ct. 549

CITY OF NEW BEDFORD et al. v. CIVIL SERVICE COMMISSION et al.

Appeals Court of Massachusetts, Bristol.

Argued June 6, 1978.

Decided Aug. 8, 1978.

Armand Fernandes, Jr., New Bedford, for plaintiffs.

Terry Jean Seligmann, Asst. Atty. Gen., for the Civil Service Commission and another.

Anthony M. Arena, Boston, for Hunter Thomas, Jr.

Before HALE, C. J., and GOODMAN and GRANT, JJ.

GOODMAN, Justice.

A police officer while serving a probationary period was discharged by the city of New Bedford for various acts and omissions which occurred before and during that period. See G.L. c. 31, § 20D, as amended through St.1971, c. 182, §§ 1 & 2. He complained through his attorney to the Director of Civil Service (hereinafter referred to as the "administrator" in accordance with the change in nomenclature made by St.1974, c. 835, § 105, effective July 1, 1975). Thereupon the administrator wrote to the mayor that as the result of his "review . . . it appears that the reasons are not those for which termination is authorized under § 20D." He concluded, "It is, therefore, my decision that the termination . . . may not be approved on the basis of the information furnished." The city appealed to the Civil Service Commission (commission), which held a hearing and, by a vote of three to two, "Voted: That after review and careful consideration of all the evidence, to deny the appeal because the appointing authority's action was not within the purview of General Laws, Chapter 31, Section 20D." The city thereupon brought this action in the Superior Court against the commission, the administrator, and the police officer, seeking relief, in the nature of certiorari, from the decision of the commission. G.L. c. 249, § 4, as appearing in St.1973, c. 1114, § 289. Judgment was entered reciting that "(t)he Court ha(d) duly considered the transcript of the certified record and the proceedings of the Civil Service Commission" and ordering that the decision of the commission be affirmed and the police officer be reinstated. The city appealed to this court; we reverse.

It is clear, and the defendants virtually concede, that the administrator was without power in this case to reverse the decision by the city to discharge the police officer pursuant to G.L. c. 31, § 20D. By the first paragraph of that section an increase in pay or change in duties is prohibited without approval of the administrator, and by the second paragraph the administrator is empowered to "establish procedures ensuring the evaluation by appointing authorities of the performance of police officers during (their) probationary period." The defendants concede that the prohibition in the first paragraph has no application to termination of employment and that such procedures as the administrator has established under the second paragraph "did not relate to grounds for termination."¹ (We do not, of course, intimate any view as to the scope of the administrator's rule-making power under the second paragraph of § 20D.) Citing nothing in the civil service laws in support of the administrator's power in this case, the commission nevertheless points to its "broad authority under G.L. c. 31, § 2(B ), to 'hear and decide all appeals from any decision or action of or failure to act by, the director (administrator) upon application of a person aggrieved thereby.' " It argues that the administrator's "administrative action was properly a subject of Civil Service Commission review." This is, however, beside the point. The administrator's decision was beyond his powers and the commission's review could go no further than to vacate that decision. Cf. Cox v. Civil Serv. Commn., --- Mass.App. ---, ^a 338 N.E.2d 354 (1975).

The structure and content of the civil service laws impels our conclusions; they provide an administrative hearing for tenured employees, G.L. c. 31, § 43, but not for probationary employees, whose rights are defined in § 20D. See Sullivan v. Commissioner of Commerce & Dev., 351 Mass. 462, 465-466, 221 N.E.2d 761 (1966); Costa v. Selectmen of Billerica, --- Mass.App. ---,^b 378 N.E.2d 462 (1978), in which probationary employees contested their discharge directly in the Superior Court, seeking reinstatement in an action in the nature of mandamus. See also Scott v. Manager State Airport, Hanscom Field, 336 Mass. 372, 145 N.E.2d 706 (1957); Thibeault v. New Bedford, 342 Mass....