Mayor of Revere v. Civil Service Com'n

• Decision Date: 30 August 1991
• Docket Number: No. 90-P-1102,90-P-1102
• Citation: 31 Mass.App.Ct. 315,577 N.E.2d 325
• Parties: MAYOR OF REVERE v. CIVIL SERVICE COMMISSION et al. 1 (and a companion case 2 ).
• Court: Appeals Court of Massachusetts

Page 325

577 N.E.2d 325

31 Mass.App.Ct. 315

MAYOR OF REVERE

v.

CIVIL SERVICE COMMISSION et al. ¹ (and a companion case ²).

No. 90-P-1102.

Appeals Court of Massachusetts Suffolk.

Argued May 9, 1991.

Decided Aug. 30, 1991.

Paul G. Holian, Boston, for Edward F. Ryan.

David Hofstetter, Asst. Atty. Gen., for Civ. Service Com'n.

Ira H. Zaleznik, Boston, for plaintiff.

Before GILLERMAN, PORADA and IRELAND, JJ.

GILLERMAN, Justice.

After the personnel administrator of the Department of Personnel Administration for the Commonwealth (the administrator) had approved the decision of the mayor of the city of Revere (the mayor) not to appoint the defendant, Lt. Edward F. Ryan (Ryan), chief of the Revere police department, Ryan appealed the decision to the Civil Service Commission (the commission) under the provisions of G.L. c. 31, § 2(b ), ³ as amended by St.1981, c. 767, § 11. The commission reversed the administrator's decision. The mayor responded with an action in the Superior Court in the nature of certiorari, see G.L. c. 249, § 4, and a judge of the Superior Court reversed the decision of the commission, leaving the decisions of the mayor and the administrator intact. Ryan and the commission have appealed to this court, claiming that the judge was in error and that the decision of the commission should be reinstated. ⁴ We vacate the judgment and remand the case to the Superior Court for remand to the commission.

1. Background. The factual background to this controversy is not in dispute. The case arose out of the theft and illegal use of police civil service examinations by members of the Revere police force.

In 1979, the administrator, having given an examination for the civil service position of police chief of Revere, certified a list of three candidates to the mayor. The first-ranked candidate, whom the mayor appointed chief of police, ⁵ subsequently was indicted and convicted for his involvement in the so-called "exam scam." The second-ranked candidate was also indicted, and a third candidate, whose name was added to the eligible list when the first of the indictments was handed down and whom the mayor appointed to fill the resulting vacancy in the chief's position, died unexpectedly. This left the third-ranking Ryan the sole remaining candidate on the certified list. See G.L. c. 31, § 27. The administrator, exercising special authority given him to revive the expired 1979 test, certified a "short list" to the mayor consisting of a single candidate, Ryan. See St.1976, c. 534, § 1.

On February 8, 1989, the mayor wrote the administrator that he did not intend to appoint Ryan as chief of police, and, acting under the provisions of G.L. c. 31, § 27, ⁶ which permits a provisional appointment if less than three names are on the eligibility list, the mayor requested permission to make a provisional appointment ⁷ to the vacant position, pending a new examination and certification. General Laws c. 31, § 12, which we set out in the margin, ⁸ requires that a provisional appointment of a person not on the eligibility list may be made but only if the appointing authority states "sound and sufficient reasons," satisfactory to the administrator, for not appointing a person who is on the eligibility list. The mayor identified three reasons for his decision not to appoint Ryan: (i) lack of leadership ability, (ii) excessive use of sick time and injury time, and (iii) lack of sensitivity, discretion and good judgment.

On February 23, the administrator wrote the mayor that more specific information was required before the administrator could determine whether the mayor's reasons were "sound and sufficient" (see note 8, supra ). The mayor provided the administrator with more specific information on March 6, including (i) Ryan's identification with a particular faction in the police department which resulted in "many in the department ... hold[ing] him in contempt," (ii) itemization of Ryan's sick leave, which the mayor indicated was "substantial" in recent years and which "reflects the general perception that [he] lost interest in the job of a police officer and was 'marking time,' " and (iii) evidence of Ryan's placing a wager while in uniform at the Wonderland race track. On March 16 the administrator, without elaboration, accepted reasons numbered two and three as sufficient to support the "non-selection" of Ryan. He then authorized the mayor to make a provisional appointment.

Proceeding under the provisions of G.L. c. 31, § 2(b ), Ryan appealed to the commission, claiming in substance that the mayor's decision not to appoint him was politically motivated, arbitrary, capricious and in violation of "basic merit principles." See G.L. c. 31, § 1.

In July, a single member of the commission held a hearing; the parties were represented by counsel who examined and cross-examined witnesses, including Ryan and the mayor. Notwithstanding the provisions of the fourth paragraph of G.L. c. 31, § 2(b ), see note 3 supra, the single member made no report of his findings of fact and recommendations to the commission. The commission's decision was announced on December 4. "Based upon the testimony ... and the materials offered in evidence [at the hearing before the single member], the [c]ommission conclude[d] that the reasons offered by the ... [mayor were] insufficient and [were] a pretext for other reasons, viz., personal hostility on the part of the ... [mayor] toward ... [Ryan]." ⁹ Recognizing that the commission could not order the appointment of Ryan, see Goldblatt v. Corporation Counsel of Boston, 360 Mass. 660, 666, 277 N.E.2d 273 (1971), the commission merely ordered Ryan's name to the top of the forthcoming eligibility list for chief of police of Revere.

The judge of the Superior Court, who had the entire administrative record before her, concluded that (i) the commission exceeded its authority under the fifth paragraph of c. 31, § 2(b ), which limits the scope of the commission's power to a review of whether the administrator's decision was based on "a preponderance of the evidence in the record," and (ii) in any event, "the Commission's decision was unsupported by substantial evidence." The judgment entered in the Superior Court, which we vacate, requires a discussion of the nature of the proceedings before the commission in appeals under the fifth paragraph of G.L. c. 31, § 2(b ), see note 3 supra, a subject which has not, to our knowledge, previously been considered by the Supreme Judicial Court or this court. ¹⁰

2. Discussion. As previously noted, the mayor, before being given the authority to bypass the eligibility list, provided the administrator with what the mayor claimed were "sound and sufficient reasons" for the nonselection of Ryan. The administrator accepted the proffered reasons.

Upon the ensuing appeal of Ryan, the commission was required to determine, after a hearing either before the commission or before less than a majority of its members, see G.L. c. 31, § 2(b ), fourth par., "whether the ... [mayor] had sustained ... [his] burden of proving by a fair preponderance of the evidence that there ... [were sound and sufficient reasons] for the action ... [he] took." Gloucester v. Civil Serv. Commn., 408 Mass. 292, 297, 557 N.E.2d 1141 (1990). ¹¹ The preponderance of evidence test imposed by the fifth paragraph of G.L. c. 31, § 2(b ), required the commission to determine whether, on the basis of the evidence before it, the mayor established that the reasons assigned by him for the nonselection of Ryan were, more probably than not, sound and sufficient. See Fire Commr. of Boston v. Joseph, 23 Mass.App.Ct. 76, 82, 498 N.E.2d 1368 (1986). In the event of a failure of proof by the mayor, the commission has the power to reverse the decision of the administrator and, in this case, did so.

As noted, the mayor and the commission now come to court under the provisions of G.L. c. 249, § 4 (a civil action in the nature of certiorari). Certiorari is available to correct errors of law in administrative proceedings where, as here, judicial review is otherwise unavailable. "The nature or scope of the review accommodates to the kind of administrative decision involved, and this in turn is conditioned by the type of substantive rule or standard that is being applied." Yerardi's Moody St. Restaurant & Lounge, Inc. v. Selectmen of Randolph, 19 Mass.App.Ct. 296, 300, 473 N.E.2d 1154 (1985). Where there is a broad grant of discretionary authority to the agency, as is commonly true of local licensing authorities for example, see, e.g., G.L. c. 140, § 177A, the standard of review is error of law or abuse of discretion, measured by the arbitrary and capricious test. See Caswell v. Licensing Commn. for Brockton, 387 Mass. 864, 877-878, 444 N.E.2d 922 (1983). But where, as here, the authority of the administrative agency (here, the commission) is limited by "narrow and objective criteria," ¹² id. at 878, 444 N.E.2d 922, judicial review becomes "an assessment of the strength of the evidence supporting the agency's action...." Yerardi's, supra, 19 Mass.App.Ct. at 300, 473 N.E.2d 1154.

Thus we must inquire whether there is substantial evidence in the record before the commission to support the commission's decision, see Gloucester v. Civil Serv. Commn., 408 Mass. at 297, 557 N.E.2d 1141--quite aside from the traditional judicial inquiry as to whether it appears from the record that the administrative decision involved a substantial error of law that affects material rights. ¹³ "[S]ubstantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion.' " New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 466, 420 N.E.2d 298 (1981), quoting from Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79, 92, 242 N.E.2d 868 (1968). The test is whether experience would permit "the reasoning mind" to make the agency decision. Ibid.

No doubt the commission's finding of bad...