MacHenry v. Civil Service Com'n

• Decision Date: 13 September 1996
• Docket Number: No. 94-P-1199,94-P-1199
• Court: Appeals Court of Massachusetts
• Parties: Thomas MacHENRY v. CIVIL SERVICE COMMISSION & others. 1

Page 1029

666 N.E.2d 1029

40 Mass.App.Ct. 632

Thomas MacHENRY v. CIVIL SERVICE COMMISSION & others. ¹

No. 94-P-1199.

Appeals Court of Massachusetts,

Suffolk.

Argued Dec. 28, 1995.

Decided July 1, 1996.

Further Appellate Review Denied Sept. 13, 1996.

Nicholas Foundas, Boston, for the plaintiff.

Peter Sacks, Assistant Attorney General, for Civil Service Commission & another.

Thomas A. Mullen, Town Counsel, for Board of Selectmen of Wakefield.

Before SMITH, IRELAND and LENK, JJ.

LENK, Judge.

Thomas MacHenry, a sergeant in the Wakefield police department, appeals from a judgment of the Superior Court dismissing his complaint, which sought relief in the nature of certiorari pursuant to G.L. c. 249, § 4, from a decision of the Civil Service Commission (commission).

This procedurally-complex controversy stems from MacHenry's short-lived promotion to police lieutenant in 1988, when the board of selectmen of the town of Wakefield voted to "bypass" two higher scoring individuals on the certified civil service promotion eligibility list and to promote MacHenry, the lowest scoring of the three. Pursuant to G.L. c. 31, § 27, the selectmen submitted to the Department of Personnel Administration (DPA) a written statement of reasons for the bypass, as required by § 27 in order for the appointment to become effective. MacHenry's excellent law school record was the chief reason given for the bypass. DPA then informed the selectmen that this explanation was inadequate since education is already factored into an applicant's score and inappropriate double counting would result were it again cited to justify the bypass. DPA requested the selectmen to provide an additional, more detailed, explanation for the bypass. Instead of providing DPA with a sufficient explanatory statement for the bypass warranting MacHenry's promotion, the selectmen opted not to pursue MacHenry's promotion at all. They then promoted another individual, second on the list, and provided the DPA with a detailed statement of reasons explaining why this candidate was promoted to lieutenant over the highest scoring candidate. The DPA approved the statement of reasons. MacHenry, who during this period of time had already assumed the duties of lieutenant with concomitant compensation, was returned to his previous sergeant's position. MacHenry then started down the long and winding road of litigation protesting this unhappy turn of events.

The matter is before us after MacHenry's appeal of DPA's action to the commission pursuant to G.L. c. 31, § 2(b ), followed by his appeal from the commission's decision to the Superior Court. Reduced to its essentials, MacHenry argues that the Superior Court judge erred in dismissing the complaint in the nature of certiorari because the commission erred in upholding the selectmen's rescission of MacHenry's appointment and promoting instead a higher scoring candidate. The commission concluded that MacHenry's appointment had never become effective because DPA never approved a statement of reasons for the bypass and that the selectmen were accordingly free to promote another candidate. The commission's determination in this regard was made despite its ruling that the reasons initially provided by the selectmen to DPA for bypassing others in favor of MacHenry, which reasons DPA at the time rejected, were in fact valid reasons for the bypass which could have withstood challenge from those bypassed for promotion.

MacHenry argues, more particularly, first, that the nub of the problem lies with DPA's having undertaken at all to review substantively the selectmen's statement of bypass reasons when it had no authority under G.L. c. 31, § 27, to do so. Since DPA's receipt, and not its approval, of the statement of reasons is all that § 27 requires to make a promotion effective, he argues that his promotion in fact became effective and vested in 1988, and that he could not be legally demoted without due process of law, which he has been denied. Secondly, he argues that the commission's decision was not supported by substantial evidence. This latter argument is devoid of merit, and we confine our attention to the first issue, i.e., whether § 27 authorizes DPA to review the validity of the statement of reasons that an appointing authority--here, the selectmen--must submit when it makes a bypass promotion or whether the appointment is effective merely upon receipt by DPA of the statement of reasons.

The standard of review in an action in the nature of certiorari is "to correct substantial errors of law apparent on the record adversely affecting material rights." Commissioners of Civil Serv. v. Municipal Ct. of Boston, 369 Mass. 84, 90, 337 N.E.2d 682 (1975), quoting from Sullivan v. Committee on Rules of the House of Representatives, 331 Mass. 135, 139, 117 N.E.2d 817 (1954). In pertinent part, § 27, as amended by St.1985, c. 527, § 16 provides:

"If an appointing authority makes an original or promotional appointment from a certification of any qualified person other than the qualified person whose name appears highest, and...