Commissioner of Metropolitan District Commission v. Director of Civil Service

• Decision Date: 07 December 1964
• Citation: 203 N.E.2d 95,348 Mass. 184
• Parties: COMMISSIONER OF the METROPOLITAN DISTRICT COMMISSION v. DIRECTOR OF CIVIL SERVICE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 95

203 N.E.2d 95

348 Mass. 184

COMMISSIONER OF the METROPOLITAN DISTRICT COMMISSION v. DIRECTOR OF CIVIL SERVICE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 7, 1964.

Decided Dec. 7, 1964.

William D. Quigley, Sp. Asst. Atty. Gen. (Harvey E. Weir, Boston, with him), for plaintiff.

Nelson I. Crowther, Jr., Asst. Atty. Gen., for Director of Civil Service.

Arnold L. Slavet, Boston, for Cornelius J. O'Handley.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

CUTTER, Justice.

The commissioner of the Metropolitan District Commission (M.D.C.) seeks declaratory relief against the director of civil service (the director) and O'Handley to determine whether O'Handley must be appointed a patrolman on the Metropolitan District Police. It was alleged (and later agreed) that O'Handley was a disabled veteran; that on August 7, 1954, he had pleaded guilty to, and been sentenced upon, an indictment for armed robbery; and that on September 12, 1958, he received a full pardon.

The case was heard upon a statement of agreed facts. By final decree it was declared that O'Handley must be appointed and was entitled to back pay. The commissioner appealed.

On September 16, 1961, a civil service examination was held 'to provide a list * * * to fill vacancies' as patrolman in the M.D.C.'s police. The list was established on the basis of a 'written examination, training, and experience as well as a physical examination and strength test.' The commissioner of the M.D.C. made a requisition to the director in order to make twenty-five appointments from the list. The director sent a certification to the commissioner containing thirty-five names of which the first sixteen were disabled veterans and the remaining nineteen were veterans. O'Handley was the tenth person in line for appointment. He was certified as a disabled veteran and held 'a discharge which covers service in both World War II and the Korean Conflict.' O'Handley is 'willing and able to accept * * * but the [c]ommissioner has refused to appoint him.' The commissioner, as his reason, referred in a letter of January 8, 1964, to O'Handley's plea of 'guilty to the charge of [armed] robbery * * *. [O'Handley] was sentenced to an indefinite term for armed robbery of an A & P store and for carrying a dangerous weapon and thereafter was remanded to the * * * [r]eformatory at Concord. Inasmuch as * * * [G.L. c. 41, § 96A] reads: 'No person who has been convicted of any felony shall be appointed as a police officer * * *' my decision in not appointing him, even though he is a disabled veteran * * * is obvious. * * * [I]t should be disclosed that on September 12, 1958 * * * O'Handley was granted a full * * * pardon by the then governor, with the * * * consent of the * * * Council.'

Relying upon a 1961 opinion of the Attorney General (Rep.A.G.Pub.Doc.No.12, 1961, p. 125) in a similar case and also upon a 1964 opinion concerning this very matter, the director wrote to the commissioner that it was 'necessary that * * * O'Handley be appointed.' A second letter (February 14, 1964) from the director stated that 'inasmuch as * * * O'Handley, a disabled veteran, has not been appointed * * * the appointments of the following non-disabled veterans, who were appointed from the certification list of December 9, 1963 on which * * * [O'Handley's] name * * * was certified as a disabled veteran, are hereby revoked.' Then followed the names of fourteen patrolmen. It has been stipulated that if O'Handley was, 'as a matter of law, entitled to the appointment' he shall receive back pay as of December 30, 1963, and that a vacancy 'will be held available until the conclusion of this litigation.'

This case is in most respects one of first impression in Massachusetts. It requires consideration of (a) the extent to the appointing pointing authority's discretion, under G.L. c. 31, § 23 (as amended through St.1954, c. 627, § 5), ¹ to refrain from appointing a disabled veteran to a civil service post because of his past commission of a serious crime of violence, and (b) the extent to which O'Handley's pardon ² may prevent the commissioner from considering, as a ground for not appointing O'Handley a police officer, the robbery which led to O'Handley's plea of guilty and sentence.

1. The commissioner is the appointing officer of the M.D.C. See G.L. c. 28, § 3 (as amended through St.1961, c. 562, § 1). As such, he possesses whatever discretion is given to an appointing authority under the civil service statutes and regulations. ³

2. In Brown v. Russell, 166 Mass. 14, 43 N.E. 1005, 32 L.R.A. 253, the question was presented whether a veteran could properly be placed at the head of the eligible list for appointment to the detective force of the Commonwealth's district police in preference to all others, under St.1895, c. 501, which authorized appointment of veterans without examination. The court said (p. 24, 43 N.E. p. 1009), 'The purpose of St.1895, c. 501, §§ 2, 6, is to make the appointment of veterans compulsory, if they desire to be appointed, whether the appointing power of the commissioners think they are or are not qualified to perform the duties of the office or employment they seek.' The court proceeded (p. 25, 43 N.E. p. 1010), '[I]t is inconsistent with the nature of our government, and particularly with articles 6 and 7 ⁴ of our declaration of rights, that the appointing power should be compelled by legislation to appoint to public offices persons of a certain class, in preference to all others, without the exercise on its part of any discretion, and without the favorable judgment of some * * * officer or board designated by law to * * * determine whether the persons to be appointed are actually qualified to perform the duties which pertain to the offices' (emphasis supplied). At pp. 26-27, 43 N.E. at p. 1010, it was said, 'We are of opinion that sections 2, 6 * * * so far as they purport absolutely to give to veterans particular and exclusive privileges, distinct from those of the community, in obtaining public office, cannot be upheld as * * * within the constitutional power of the general court' (emphasis supplied). The opinion pointed out (p. 20, 43 N.E. p. 1007) that there was in the 1895 statute no 'indication that the legislature intended that the [civil service] commissioners should examine a veteran * * * [who made application under the statute] with reference to his moral character, or his mental acquirements and capacity to perform the duties of the position which he seeks.' Moral character thus seems to have been regarded by the court as a requisite of appointment at least on a parity with 'mental acquirements and capacity to perform the duties.'

Shortly thereafter the Legislature enacted St.1896, c. 517. ⁵ In Opinion of the Justices, 166 Miss. 589, 44 N.E. 625, 34 L.R.A. 58, the Justices considered that statute and certain rules proposed thereunder. Four Justices said (p. 595, 44 N.E. p. 626) that the effect of § 2 'is that the veterans must first be found qualified, by an examination in accordance with the civil service statutes and rules, to perform the duties of the office * * * and, if they are found so qualified, they are to be preferred in appointment * * *. The general court may have been of the opinion that' an honorably discharged veteran 'is a person who has shown such qualities of character that it is for the interest of the commonwealth to appoint him to certain offices * * * in preference to other male persons, if he is found otherwise qualified to perform the duties. The general court may have so thought, on the ground either that such a person would be likely to possess courage, constancy, habits of obedience and fidelity, which are valuable qualifications for any public office * * * or that the recognition of the service of the veterans * * * would encourage * * * devotion to the welfare of the state * * *. If such was the opinion of the general court, we cannot say that it was beyond its constitutional power to enact this section. Of the wisdom of such legislation we are not made the judges. The section does not purport to give an absolute preference to veterans, without regard to their qualifications, and the constitutionality of similar legislation was not considered in' Brown v. Russell, 166 Mass. 14, 43 N.E. 1005 (emphasis supplied). Three Justices were of opinion (166 Mass. pp. 599-600, 44 N.E. p. 629) that it was 'not within the constitutional power of the legislature to enact that veterans shall be preferred for public office or employment to others who may have higher standing or superior qualifications.'

With respect to § 3 (see fn. 5) all the Justices were of opinion (pp. 595-596, 44 N.E. p. 627) that it validly gave 'a discretion to the appointing power to appoint veterans to certain * * * [positions] without an examination, if in its opinion the needs of the public service require this to be done.' At p. 596, 44 N.E. at p. 627, it was said, 'Undoubtedly this * * * gives a certain advantage to veterans over other persons, in being appointed to office or employment, but the section implies that the veteran to be appointed shall be found qualified by the appointing power in its own way, and it was not intended to provide for the appointment of veterans who are not qualified to perform the duties pertaining to the office or employment which they seek. The section does not necessarily exclude the appointment of other persons if the appointing power is of opinion that the appointment should be made under the civil service statutes and rules. We cannot say that this section is an enactment beyond the constitutional power of the general court' (emphasis supplied). The Justices were not confronted with a question involving any specific appointee or office and had only incidental occasion to consider or mention (see p. 597, 44 N.E. 625) good character or other qualities not established...