Doherty v. Civil Serv. Comm'n

• Decision Date: 21 December 2020
• Docket Number: SJC-12855
• Citation: 486 Mass. 487,159 N.E.3d 653
• Parties: Denise DOHERTY v. CIVIL SERVICE COMMISSION & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

486 Mass. 487

159 N.E.3d 653

Denise DOHERTY

v.CIVIL SERVICE COMMISSION & another.¹

SJC-12855

Supreme Judicial Court of Massachusetts, Suffolk..

Argued September 9, 2020.

Decided December 21, 2020.

Michael B. Halpin, Special Assistant Attorney General, for Department of State Police.

Joseph P. Kittredge, Acton, for the plaintiff.

Robert L. Quinan, Jr., Assistant Attorney General, for Civil Service Commission.

Present: Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.²

KAFKER, J.

This case requires us to consider whether the Civil Service Commission (commission) has jurisdiction under G. L. c. 22C, § 13, and G. L. c. 31, §§ 41 - 45, to review the discipline of loss of two days of accrued leave time imposed by the colonel of the Department of State Police (department). The department contends that the Superior Court erred in finding that the commission had jurisdiction over the plaintiff's appeal of her disciplinary sanction because loss of accrued leave time does not fall within the scope of appealable matters expressly contemplated by the statutes at issue. The commission disagrees, arguing that it had jurisdiction over the plaintiff's appeal because, even if loss of accrued leave time is not expressly contemplated by the statutes, it is functionally equivalent to a suspension, which is within the commission's jurisdiction to review. The commission also argues it has jurisdiction in light of the statutes' legislative purpose. Finally, the plaintiff, assuming that the commission had jurisdiction, contends that the Superior Court decision must be reversed because the commission denied the plaintiff's request for a public hearing and the commission's decision was not supported by substantial evidence.

We hold that the commission did not have subject matter jurisdiction to review the plaintiff's loss of two days of accrued leave time under G. L. c. 22C, § 13, and G. L. c. 31, §§ 41 - 45. We therefore vacate the judgment of the Superior Court and remand for proceedings consistent with this opinion.

Background. We summarize the commission's relevant and undisputed factual findings, as well as the procedural posture of this case.

The plaintiff has been employed by the department for over twenty years. From 2007 to 2012, the plaintiff was assigned to the department's certification unit, which is responsible for providing licensing services for private security (also known as "watch guard") companies. The certification unit will periodically conduct an administrative inspection of a watch guard company to ensure that the licensee company is in compliance with the statutory requirements. Among other things, the certification unit confirms that the company has on file a complete list of current employees, as well as copies of affidavits of all employees affirming they have not been convicted of a felony or crime of moral turpitude, as required by statute.

In October 2011, the plaintiff began an administrative inspection of XYZ Watch Guard Company (XYZ).³ The plaintiff reviewed the affidavits of XYZ's employees and conducted board of probation record checks, which led her to determine that ten or eleven XYZ employees had records of felony convictions. The plaintiff subsequently conveyed to XYZ's director of government affairs that these employees jeopardized XYZ's license. The plaintiff then met with XYZ's license holder and director of government affairs and informed them that she would contact the employees herself, and XYZ provided the plaintiff with the employees' contact information to do so.

In March 2013, the department interviewed several XYZ employees who had been contacted by the plaintiff. The employees complained that the plaintiff was "rude" and "unprofessional" in their interactions. Moreover, one employee was incorrectly told by the plaintiff that the employee was unable to return to work at XYZ because of a prior felony conviction that, ultimately, did not exist. As a result of the department's investigation, the plaintiff was charged with violating article 5.8 of the department's rules and regulations concerning unsatisfactory performance, and article 5.27 concerning truthfulness. In December 2015, the department convened a trial board, which heard evidence and ultimately found the plaintiff guilty of five specific violations of article 5.8.1.⁴ The trial board recommended that the plaintiff forfeit a total of two days of accrued leave time as punishment, and both the trial board's findings and disciplinary recommendation were subsequently approved by the department colonel.

The plaintiff then timely appealed the department's decision to the commission pursuant to G. L. c. 22C, § 13. At the outset of an April 2016 evidentiary hearing before the commission, the plaintiff filed a motion requesting a public hearing pursuant to G. L. c. 31, § 43, which provides, "Any hearing pursuant to this section shall be public if either party so requests in writing." Simultaneously, the department moved to impound all testimony and exhibits that were relevant to the appeal. In its motion, the department argued that the bulk of the testimony and exhibits to be presented on appeal concerned the criminal offender record information (CORI) of several XYZ employees previously investigated by the plaintiff. Because such information is "highly sensitive and not subject to dissemination," the department argued that it should not be put in the position of potentially compromising the privacy rights afforded to the XYZ employees in their CORI records in order to defend the disciplinary action it took against the plaintiff.

The presiding commissioner at the hearing noted that there was a conflict between G. L. c. 31, § 43, which affords an appellant before the commission the right to a public hearing upon request, and the CORI statute, which protects the privacy of individuals with respect to the dissemination of their CORI records. After hearing argument from both parties, the presiding commissioner closed the hearing to members of the public. The presiding commissioner permitted the plaintiff's husband to remain for the hearing but advised him to exercise caution with respect to the sensitive information that was to be disclosed at the hearing. Ultimately, the commission issued a decision affirming the department's discipline of the plaintiff, concluding that the department's actions were supported by "just cause" and that the forfeiture of two days of accrued leave time was an appropriate sanction.

The plaintiff then commenced a civil action in the Superior Court, seeking judicial review of the commission's decision. The department, which was named as a codefendant, filed a motion to dismiss the plaintiff's complaint and asserted that the commission did not have subject matter jurisdiction to hear the plaintiff's appeal. Specifically, the department argued that the commission lacked jurisdiction over the plaintiff's appeal because loss of accrued leave time is not one of the appealable disciplinary sanctions expressly contemplated by civil service law, G. L. c. 31, § 41. The Superior Court judge denied the department's motion to dismiss and concluded that (1) under department regulations, loss of accrued leave time was the equivalent of a suspension; and (2) commission review of the plaintiff's appeal was consistent with the statutory goal of providing appeal rights to State employees across a broad range of disciplinary matters.

Subsequently, the plaintiff moved for judgment on the pleadings. In her motion, the plaintiff argued that the commission's decision to close the April 2016 evidentiary hearing was error requiring reversal and that the commission's decision affirming the department trial board's sanction was not supported by substantial evidence. The department and the commission cross-moved for judgment on the pleadings.

The Superior Court judge entered judgment on the pleadings for the defendants and affirmed the commission's decision in full. Specifically, the Superior Court judge concluded that (1) while it was error for the commission to close the evidentiary hearing to the public, the decision did not prejudice the plaintiff; and (2) the commission's decision was supported by substantial evidence and was not arbitrary or capricious. The plaintiff then appealed from the judgment on the pleadings, while the department appealed from the Superior Court judge's order denying its motion to dismiss for lack of subject matter jurisdiction. The case is now before this court on sua sponte transfer from the Appeals Court.

Discussion. 1. Subject matter jurisdiction. "[W]henever a problem of subject matter jurisdiction becomes apparent to a court, the court has 'both the power and the obligation' to resolve it." Rental Prop. Mgt. Servs. v. Hatcher, 479 Mass. 542, 547, 97 N.E.3d 319 (2018), quoting HSBC Bank USA, N.A. v. Matt, 464 Mass. 193, 199, 981 N.E.2d 710 (2013). See Mass. R. Civ. P. 12 (h ) (3), 365 Mass. 754 (1974) ("Whenever it appears by suggestion of a party or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action"). In addition, "[s]ubject matter jurisdiction cannot be conferred by consent, conduct or waiver." Rental Prop. Mgt. Servs., 479 Mass. at 547, 97 N.E.3d 319, quoting Litton Business Sys., Inc. v. Commissioner of Revenue, 383 Mass. 619, 622, 420 N.E.2d 339 (1981). Moreover, "a question of statutory interpretation is a question of law for the court to resolve." Matter of the Valuation of Bell Atl. Mobile of Mass. Corp., 456 Mass. 728, 733, 926 N.E.2d 133 (2010). Accordingly, because "lack of subject matter jurisdiction is fatal to a plaintiff's claims," Everett v. 357 Corp., 453 Mass. 585, 612, 904 N.E.2d 733 (2009), we must first address the threshold issue whether the commission had jurisdiction to hear the plaintiff's appeal. For the following reasons, we conclude that the commission did not have subject matter jurisdiction under G. L. c. 22C, § 13, and G. L. c. 31, §§...