Costa v. Board of Selectmen of Billerica

• Decision Date: 17 April 1979
• Citation: 388 N.E.2d 696,377 Mass. 853
• Parties: Ronald COSTA et al. 1 v. BOARD OF SELECTMEN OF BILLERICA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 696

388 N.E.2d 696

377 Mass. 853

Ronald COSTA et al. ¹ v. BOARD OF SELECTMEN OF BILLERICA.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 9, 1979.

Decided April 17, 1979.

Edward J. Owens, Lowell, for defendant.

Kevin P. Phillips, Marshfield (Frank J. McGee, Jr., Marshfield, with him), for plaintiffs.

D. M. Moschos and Linda R. Rodgers, Sp. Asst. City Sols. for the city of Worcester, amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

In November, 1974, the town of Billerica needed a fresh complement of twelve "permanent intermittent" police officers, that is, officers with tenured status but working only on such days as they might be called, and compensated accordingly. The board of selectmen (board) of the town, as appointing authority, applied to the Massachusetts Division of Personnel Administration for a list of eligibles, and from the list on March 5, 1975, it appointed twelve persons as probationers. Again in June, 1975, the board applied for a list, and from it on July 1 appointed eight persons in like probationary intermittent status. On November 3, 1975, the police department recommended accepting ten of the probationers for tenure as intermittent police officers, postponing action on two, and "terminating" six. (Two had resigned.) Among the six terminated were the present three plaintiffs, who had been appointed from the earlier list. On November 26, the three received notices of termination. The record does not show how many days the plaintiffs respectively had in fact served: the statute indicated that an intermittent employee on probation might be terminated within the nine months following his appointment, provided he had actually worked not less than thirty days, which need not have been consecutive. ² Here the terminations occurred nine days before the nine months would run.

These plaintiffs (and one other, not now before the court) ³ commenced the present action against the board for declaratory and other relief, claiming sundry breaches of law in their termination. The case was referred to a master, on whose report a judge of the Superior Court entered judgment for the board. We need not describe the record that was made, beyond saying that, other contentions of the plaintiffs as to alleged abusive action by the board having been unavailing, the issue reduced to whether the notices of termination complied in their terms with the then governing statute regarding probationary employees. The master and the judge found that they did. On appeal, the Appeals Court reversed. Costa v. Selectmen of Billerica --- Mass.App. ---, ^A 378 N.E.2d 462 (1978). (It appears, although not with entire clarity, the result would be that, on remand, the board would have nine days in which to attempt to amend the notices, failing which, the plaintiffs would become tenured.) The case is here for further appellate review. --- Mass. ---. ^B We hold that the decision of the Superior Court should be affirmed.

We set out the substance of the letters of termination dated November 26, 1975, sent to these plaintiffs. The reasons for termination in the case of Costa were stated to be: "your inability to handle routine calls and cooperate with and gain the cooperation of fellow officers." As to Ricciotti: "your inability to answer calls and take proper police action and failure to follow lawful orders of commanding officers." As to Lombardo: "inability to work in harmony with fellow police officers and lack of aggressiveness necessary to the performance of police functions." The terms of these notices are to be seen in the light of G.L. c. 31, § 20D, as it stood at the time (now superseded through the recodification of c. 31 by St.1978, c. 393, § 11 ⁴), which stated in its second paragraph that "(i)f the conduct or capacity of a person serving a probationary period . . . or the character or quality of the work performed by him, is not satisfactory to the appointing authority, he (the authority) may . . . give such person a written notice to that effect, stating in detail the particulars wherein his conduct or capacity or the character or quality of his work is not satisfactory, whereupon his service shall terminate." ⁵ Of each of the notices given, it may be said that it described negative traits or aspects of the person's conduct or capacity or of the character or quality of his work which led to the conclusion to terminate. It did not set out any specific incidents or episodes. In none of the cases was there a suggestion of culpable misconduct.

A requirement that the appointing authority assign an explanation for terminating a probationary employee first appeared in our civil service system in 1945, ⁶ but we have never had occasion to discuss how detailed the explanation under § 20D had to be in given situations. The case of Scott v. Manager State Airport, Hanscom Field, 336 Mass. 372, 145 N.E.2d 706 (1957), indicated that the employee could complain of the "legal insufficiency" (at 376, 145 N.E.2d 706) of a § 20D notice, but the question what qualified as sufficient did not arise: as it happened, the notice stated that the probationary watchman had refused to do cleaning work which the employer understood to be part of the job, but it also mentioned as a reason "your general uncooperative attitude" (at 375, 145 N.E.2d 706). The case of Thibeault v. New Bedford, 342 Mass. 552, 174 N.E.2d 444 (1961), decided that a statement in a § 20D notice that the probationary employee had suffered a heart attack, and consequently absented himself from work, was related to "capacity" and was thus a legitimate basis for termination; there was no issue regarding the degree of detail of the notice.

In this dearth of authoritative interpretation, the Appeals Court adopted the view, as we understand it, that the specificity in notices of termination of employees on probation under § 20D must be "as stringent" (indeed the expression used was "at least as stringent") as that required in the "specific" reasons that had to be assigned to support a charge of "just cause" for firing a tenured civil servant under the provisions of G.L. c. 31, § 43. And apparently this would, according to the court, usually call for a recital of the incidents relied on.

Typical cases under § 43 involved accusations of fault and these could, as that section provided, be defended against in hearings before the appointing authority, with a course of possible administrative and judicial review through the Civil Service Commission and a hierarchy of courts. ⁷ The fact that a probationary employee, terminated pursuant to § 20D, was not provided by statute with a comparable channel of review, is offered in the opinion of the court below as a justification for demanding considerable particularity in the § 20D notice, and the possible values of such particularity are stressed. ⁸ But we suggest, with respect for that careful opinion, that such an approach minimizes the differences in the nature of the stated criteria "just cause" for discharge under § 43, contrasted with a judgment of "not satisfactory" for termination under § 20D related to "conduct," "capacity," "character," "quality." Likewise it scants the functional differences between tenured and probationary employments which should also influence the meaning to be accorded to the sets of words in the respective sections of the law. ⁹

A tenured employee has a right of property in his job. Under § 43 he could be charged with one or other kind of blame which, if proved, would result in loss of the property. Here there would be a constitutional claim to fair procedure, including information about the accusation against the employee sufficient in the circumstances to enable him to prepare to defend. On the other hand, a person on probation understands that he is in "a status of experimental testing" which "implies no commitment for continuance of employment." Rhine v. International Young Men's Christian Ass'n College, 339 Mass. 610, 613, 162 N.E.2d 56, 59 (1959). In the usual situation under § 20D the probationer would not be charged with fault inviting defense. Rather the employer would have formed a judgment about the probationer's long-term potentiality which must be often if not invariably a comparative one, even when not expressed in that form, ¹⁰ and it would be compounded of subjective elements, notably so when the job is relatively sensitive. General impressions are a legitimate ingredient of the judgment: indeed, in the case of intermittent employment, the actual experience may be quite limited in time. The practical consequences to the probationary employee of adverse official action would usually be less serious than those attending discharge of a tenured employee, and in all events they have been tempered by the published rule of the Civil Service Commission that where a termination is "without fault or delinquency" during a probationary period, the person may, at his request within a year, have his name restored to the eligible list. ¹¹ We must remember, finally, to take care not to hobble the employer unduly in the process of selection for tenure because dislodgment thereafter is notoriously difficult; the rigidities in removing unfit tenured employees which have led to attempts at Federal reform teach a lesson as to the pretenure period also. ¹²

Responsive to the foregoing considerations, we read § 20D as rendering a notice insufficient which merely recited such a formula as "conduct unbecoming an officer," or "for the good of the service." ¹³ In the exceptional situation where an employer meant to charge a probationer with actual misconduct, we think a statement would be required of the incidents basing the charge. ¹⁴ In the middle range, we believe a notice was adequately particularized when it identified observed characteristics of the individual, related under the Thibeault case to one...