Fontana v. Commissioner of Metropolitan Dist. Com'n

• Decision Date: 01 February 1993
• Docket Number: No. 91-P-618,91-P-618
• Citation: 34 Mass.App.Ct. 63,606 N.E.2d 1343
• Parties: John FONTANA v. COMMISSIONER OF the METROPOLITAN DISTRICT COMMISSION.
• Court: Appeals Court of Massachusetts

Page 1343

606 N.E.2d 1343

34 Mass.App.Ct. 63

John FONTANA v. COMMISSIONER OF the METROPOLITAN DISTRICT COMMISSION.

No. 91-P-618.

Appeals Court of Massachusetts Suffolk.

Argued Oct. 21, 1992.

Decided Feb. 1, 1993.

Gabriel O. Dumont, Jr., for plaintiff.

Amy Spector, Asst. Atty. Gen., for defendant.

Before DREBEN, FINE and LAURENCE, JJ.

DREBEN, Justice.

Based on a determination that the plaintiff, a probationary police officer, had been involved in a hit and run accident and had untruthfully denied having any knowledge of this incident, the defendant, the commissioner of the Metropolitan District Commission (MDC), discharged the plaintiff. The latter, in this action, asserted that the charges were false and claimed that he had been deprived of constitutionally protected property and liberty interests, and that the defendant had broken its contract with him. A judge of the Superior Court entered partial summary judgment for the defendant on the plaintiff's property and contract claims, and, subsequently, a second Superior Court judge dismissed the liberty claims. This is an appeal from the ensuing final judgment. We affirm the judgment in favor of the defendant on the plaintiff's property and contract claims but conclude that the plaintiff by virtue of G.L. c. 31, § 41, is entitled to an additional name-clearing hearing before the appointing authority.

The facts are not in dispute and will be set forth in our discussion of the plaintiff's liberty interest.

1. Property claim. Recognizing that a provisional employee does not have a statutory basis for claiming a property interest in continued employment, see Stetson v. Selectmen of Carlisle, 369 Mass. 755, 759-760, 343 N.E.2d 382 (1976), and G.L. c. 31, § 65, the plaintiff urges that G.L. c. 31, § 41 (1988 ed.), ¹ and certain MDC rules that dictate the manner in which discipline is to be administered to MDC officers create a constitutionally protected property interest for probationary employees. Even accepting the dubious premise that the rules articulate a hearing procedure to be followed prior to termination, rules or a statute (G.L. c. 31, § 41) which " 'merely condition an employee's removal on compliance with certain specified procedures' do[ ] not establish a constitutionally protected property interest." Smith v. Commissioner of Mental Retardation, 409 Mass. 545, 549, 567 N.E.2d 924 (1991), quoting from Bishop v. Wood, 426 U.S. 341, 345 & n. 8, 96 S.Ct. 2074, 2077 & n. 8, 48 L.Ed.2d 684 (1976). Disciplinary or discharge procedures do not convert a provisional employee's interest in his or her employment into constitutionally protected property. Rafferty v. Commissioner of Pub. Welfare, 20 Mass.App.Ct. 718, 723, 482 N.E.2d 841 (1985) (involving an at-will employee).

2. Contract claim. The plaintiff also relies on the same MDC rules to establish his contract right to continued employment. The explicit provision of G.L. c. 31, § 65 (1988 ed.), that "a person [in the plaintiff's position] shall actually perform the duties of such position on a full-time basis for a probationary period of twelve months before he shall be considered a full-time tenured employee in such position," cannot succumb to MDC rules or contractual promises which are inconsistent with the legislative mandate.

Moreover, rule 20 of the MDC rules and the preamble to those rules state that appointments are to be made in accordance with the applicable provisions of law, and rule 20 specifically refers to the civil service laws of which G.L. c. 31, § 65, is a part. In these circumstances, the plaintiff's reliance on the rules is misplaced; "the conclusion is inexorable that no implied contract" for continued employment based on the rules existed. See Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 14, 525 N.E.2d 411 (1988). Since we conclude (see part 3, infra ) that the plaintiff is to be given an additional name-clearing hearing with greater safeguards than provided by the rules, we need not consider the plaintiff's claim to a contractual right to a hearing by reason of the rules. ²

3. Liberty interest. As indicated earlier, the plaintiff's dismissal resulted from his alleged involvement in a hit-and-run accident which occurred in January, 1989. An anonymous caller informed the police that a vehicle having a certain registration plate had struck a pedestrian. The plate number was traced to an automobile owned by the plaintiff. In April, 1989, after chemical tests showed that paint chips from the plaintiff's vehicle were consistent with paint fragments taken from the victim's clothing, the MDC applied for a criminal complaint against the plaintiff. Following a show-cause hearing in the District Court, a clerk-magistrate declined to issue a criminal complaint.

On May 11, 1989, the plaintiff was interviewed by officers of an internal MDC bureau in charge of investigating alleged misconduct by MDC police officers. The interview was tape recorded and the plaintiff was represented by counsel; a union attorney was also present. Questioned about his involvement in the accident, and about the chemical paint analysis, the plaintiff denied being aware that his vehicle had been involved in an accident and said that while he had been told of the chemical evidence, he had not seen it.

As part of the investigation, the plaintiff was asked to submit a written report. His written submission reaffirmed that he did not believe that he had been involved in the accident, but admitted that, while on the expressway, he thought he saw "something or someone out of the corner of [his] eye." He slammed on the brakes, swerved to the left, and "thought that [he] may have bumped the guardrail."

On May 26, 1989, the plaintiff delivered a letter addressed to the commissioner stating that he understood that the commissioner was considering discharging him and requesting a meeting to answer the charges. He claimed that he had not had an opportunity to "hear or see the alleged evidence against him" or to "question it."

On the same day, May 26, 1989, the commissioner sent the plaintiff a letter notifying him that he was being terminated from his position because he had untruthfully denied his involvement in an accident, had left an injured person in the roadway, and, among other derelictions of duty, had violated G.L. c. 90, § 24(2)(a ), by not stopping and making known his name, residence, and registration number. Because of this behavior, the plaintiff's "character and conduct" were "unsatisfactory to the department and in derogation of [his] sworn duties as a police officer." No action was taken on the plaintiff's request of May 26, 1989, for a meeting and, without further discussion with the plaintiff, the commissioner's letter was read at four police roll calls, was posted within the MDC police station, and was placed in the plaintiff's personnel file.

The plaintiff thereafter sought unemployment benefits. Although the MDC claimed that the plaintiff had been discharged for deliberate misconduct, a hearing officer of the Department of Employment and Training (DET) dismissed the employer's charges because it could not be established that the plaintiff was driving the vehicle even if his car had been involved in the accident. The board of review of DET denied the MDC's application for review. ³

In considering the defendant's motion for summary judgment on the plaintiff's liberty interest claim, the second motion judge recognized that the plaintiff's liberty interest was implicated and that he was entitled to a name-clearing hearing. A liberty interest arises where, as here, a public employee is discharged because of stigmatizing charges alleged by the employee to be false and which are disseminated to the public or are likely to be communicated to prospective employers. See Regents of State Colleges v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972); Bishop v. Wood, 426 U.S. at 348, 96 S.Ct. at 2079; Stetson v. Selectmen of Carlisle, 369 Mass. 755, 762, 343 N.E.2d 382 (1976); Smith v. Commissioner of Mental Retardation, 409 Mass. at 550-551, 567 N.E.2d 924.

The judge, however, concluded that the hearings previously accorded to the plaintiff were sufficient.

"Mr. Fontana has had three opportunities to hear and evaluate the MDC's evidence and refute the charges against him in order to clear his name. First, he had a show-cause hearing before a district court clerk-magistrate at which he was able to challenge the evidence assembled by the MDC. The district court declined to issue a criminal complaint against Fontana. On May 11, 1989, prior to Fontana's dismissal, he was interviewed by MDC officers relative to the alleged hit and run accident. Fontana, accompanied by counsel, was presented with the evidence against him and given the opportunity to challenge it. He offered no information to rebut the evidence. Finally, subsequent to Fontana's discharge, the Department of Employment and Training ('DET'), then the Division of Employment Security, conducted a hearing to determine whether Fontana should be denied unemployment benefits for having engaged in deliberate acts in wilful disregard of the MDC's interests. Fontana was there again given an opportunity to clear his name, and was successful in obtaining a decision in his favor. Taken together, if not individually, these three occasions satisfy the due process requirements of notice and an opportunity to be heard. Additionally, Fontana can point to his successes in the district court and DET proceedings in order to clear his name and reputation from the stigma imposed by the MDC's charges."

The difficult question is whether the second motion judge was correct that the three hearings satisfied the constitutional and statutory requirements. ⁴ Because we conclude that the hearings did not satisfy the statutory requirements, more particularly G.L. c. 31, § 41, we do not reach the question whether the constitutional...