Malloch v. Town of Hanover

• Decision Date: 24 September 2015
• Docket Number: SJC–11713
• Citation: 472 Mass. 783,37 N.E.3d 1027
• Parties: Kristin MALLOCH v. TOWN OF HANOVER & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

472 Mass. 783

37 N.E.3d 1027

Kristin MALLOCH

v.TOWN OF HANOVER & others.¹

SJC–11713

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Jan. 5, 2015.

Decided Sept. 24, 2015.

Frank J. McGee for the plaintiff.

Bryan F. Bertram, Assistant Attorney General, for the personnel administrator of the human resources division of the Commonwealth.

Galen Gilbert, Boston, for Carla Sullivan, amicus curiae, submitted a brief.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

DUFFLY, J.

The town of Hanover (town) had two open positions for sergeants in its police department. Although the plaintiff, Kristin Malloch, had scored highest on the civil service examination for promotion to a police sergeant position, the town decided to bypass Malloch and promote the candidates who had scored second and third highest on the sergeants' examination. Malloch appealed the town's decision to the Civil Service Commission (commission), pursuant to G.L. c. 31, § 2 (b ), arguing that, where an appointing authority promotes a candidate other than the candidate ranked highest on the certification list; the promotion will not become effective until the appointing authority's written statement of reasons for the bypass “has been received by the administrator,” G.L. c. 31, § 27 ; that “received” in this context means substantially reviewed and approved by the administrator; and that the administrator² may not, in accordance with G.L. c. 31, § 5 (l ), delegate that function to the town's appointing authority. Malloch argued also that, even if the delegation were permissible, her bypass was not supported by evidence of a reasonable justification for the bypass. The commission denied her appeal, and Malloch sought review in the Superior Court pursuant to G.L. c. 30A, § 14.

Agreeing with Malloch that the statutory requirement that the written statement of bypass reasons must be “received by” the administrator means “reviewed and approved by” the administrator,

a Superior Court judge concluded that it was not “practicable,” see G.L. c. 31, § 5 (l ), for the administrator to delegate that function. The judge allowed Malloch's motion for judgment on the pleadings, ordered the town to submit its statement of bypass reasons to the human resources division (HRD), and remanded the matter to HRD and the commission, instructing HRD to decide, after having conducted a “substantive review,” whether the bypass reasons should be approved. The administrator and the town, the defendants here,³ filed an appeal in the Appeals Court, and we allowed their petition for direct appellate review.

We conclude that the administrator may delegate its administrative function to receive statements of reasons supporting bypass promotions, and that it was “practicable,” see G.L. c. 31, § 5 (l ), to do so here. Because the judge remanded the matter to HRD to make such a determination without conducting his own review of whether the commission's determination was supported by substantial evidence, we vacate the judgment and remand the case to the Superior Court.⁴

1. Background. a. Bypass of Malloch. We briefly recite the facts found by the commission regarding Malloch's bypass, reserving the remaining facts for our subsequent discussion.

At the time of the decision to bypass Malloch, she had served as a police officer in the town for eight years. She was one of two female officers in the town. In October, 2011, Malloch took HRD's police sergeant promotional examination and received a score of eighty-six. In April, 2012, the town certified two vacant police sergeant positions. Malloch's name appeared first on the certification list provided to the town by HRD, ahead of three other officers. One of those officers subsequently withdrew his name from consideration. Malloch initially was interviewed by a panel of three senior police officers from the town and from neighboring municipalities; the panel ranked her last among the three candidates. She then was interviewed by the town manager and the chief of police, who also ranked her last. Based largely on these interviews, the town manager, who is the town's appointing authority, chose to bypass Malloch and promote the two other

officers.

b. HRD's delegation policy. Effective September 1, 2009, HRD informed municipalities that it had delegated, pursuant to G.L. c. 31, § 5 (l ), certain administrative functions to appointing authorities. In a memorandum issued in August, 2009, HRD wrote,

“Each municipality will be responsible for ... making appointments and promotions from the eligible list and providing bypass and selection reasons to the applicants in accordance with civil service law and rules. After August 31, 2009, HRD will no longer review and approve appointments and promotions. Appeals will be made directly to the [commission].”

The memorandum further explained that HRD “will provide technical assistance as needed to assist the municipalities in making appointments and promotions from the eligible list.” HRD sent “a technical certification manual to each city and town,” conducted training sessions to explain the type of analysis required, and provided a nonexclusive list of approved reasons for appointing authorities to consider when determining if a bypass promotion is reasonable. The manual states that reasons which are not specifically enumerated in that list “may be determined unacceptable.” The manual notes also that the administrator retains the authority to audit appointing authorities to ensure compliance with civil service law.

2. Statutory framework. General Laws c. 31 (civil service statute) governs civil service law in the Commonwealth and details the responsibilities and authority of the administrator, the commission,⁵ and the appointing authority.⁶

The civil service statute was first enacted in 1884. See St. 1884, c. 320. It created a three-member civil service commission to establish rules for the selection of civil service employees. See St. 1884, c. 320, §§ 1–2. In 1939, the Massachusetts Special Commission Established to Study the Civil Service Laws, Rules and Regulations, with a View to Revision Thereof filed a report recommending that the commission no longer administer the civil service rules. See 1939 House Doc. No. 1722. Instead, it recommended,

the “[c]ommission should be relieved of all technical and administrative matters. The only instances in which the [c]ommission should function are in its participation in the adoption of rules, and hearing and deciding all appeals.” Id. The Legislature adopted this report and created a separate agency, the HRD, to handle technical and administrative matters such as administering examinations and creating certified appointment lists. See St. 1939, c. 238, § 30. See also Note, The Massachusetts Civil Service Law: Is It Necessary to Destroy the Current System in Order to Save it?, 40 New Eng. L.Rev. 1103, 1106–1107 (2006).

The two separate entities have clear and distinct roles. The commission has the adjudicative duty to “hear and decide appeals by a person aggrieved by any decision, action, or failure to act by the administrator.” G.L. c. 31, § 2 (b ). It also may hear appeals by persons aggrieved by a decision, action, or failure to act by the appointing authority. G.L. c. 31, § 2 (c ). By contrast, the administrator's duties, as detailed in G.L. c. 31, § 5, are not adjudicative, but include, among other things, the duty to administer civil service law and rules, establish classification plans, conduct examinations, and maintain records. In creating the two separate agencies with separate roles, the Legislature indicated its intent that the commission adjudicate appeals and safeguard individual rights, while the administrator completes tasks necessary to the administration of the civil service system.

To promote efficiency, the administrator has the power “[t]o delegate the administrative functions of the civil service system, so far as practicable, to the various state agencies and cities and towns of the [C]ommonwealth.” G.L. c. 31, § 5 (l ). Where an appointing authority identifies an open civil service position, the administrator has the duty to certify to the appointing authority eligible candidates for promotion or appointment. G.L. c. 31, § 25. The eligible candidates are listed in order of their civil service examination scores, with the inclusion of veterans' preferences. G.L. c. 31, § 26. An appointing authority may choose to promote a person other than the highest ranked candidate on the certification list. See Brackett v. Civil Serv. Comm'n, 447 Mass. 233, 253, 850 N.E.2d 533 (2006). Whenever an appointing authority chooses to bypass a higher-ranked candidate, it immediately must file a written statement of its reasons for appointing a candidate with a lower score. G.L. c. 31, § 27. Such an appointment will not be effective until the written statement has been “received by” the

administrator.⁷

3. Discussion. The question before us is whether the administrator permissibly delegated its function under G.L. c. 31, § 27, to appointing authorities.

We review questions of statutory interpretation de novo. Sheehan v. Weaver, 467 Mass. 734, 737, 7 N.E.3d 459 (2014). “Our primary duty in interpreting a statute is ‘to effectuate the intent of the Legislature in enacting it.’ ” Water Dep't of Fairhaven v. Department of Envtl. Protection, 455 Mass. 740, 744, 920 N.E.2d 33 (2010), quoting International Org. of Masters v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth.,

392 Mass. 811, 813, 467 N.E.2d 1331 (1984). We begin our analysis with the statutory language. “Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent.” Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444, 895 N.E.2d 446 (2008). Accordingly, where the statutory language is clear, we must “give effect to the plain and ordinary meaning of the language” (citation omitted), Morales v. Morales, 464 Mass. 507, 511, ...