McGuiness v. Dep't of Corr.
| Decision Date | 01 July 2013 |
| Docket Number | SJC–11261. |
| Citation | 465 Mass. 660,991 N.E.2d 176 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Benjamin McGUINESS & another v. DEPARTMENT OF CORRECTION & another. |
OPINION TEXT STARTS HERE
Stephen C. Pfaff, Boston, for the plaintiffs.
Carol A. Colby for Department of Correction.
Robert L. Quinan, Jr., Assistant Attorney General, for Civil Service Commission, was present but did not argue.
Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.
This case concerns the effect of a tie vote on the Civil Service Commission (commission) in an appeal from a decision of the Department of Correction (department) to terminate two employees. On this record, we conclude that the effect of the tie vote was that the initial decision of the hearing officer affirming the department's termination order became the final decision of the commission, which, in turn, is subject to judicial review.
1. Background. The plaintiffs, Benjamin McGuiness and Richard Mullen, were employees of the department, assigned to the Massachusetts Alcohol and Substance Abuse Center. In 2005, the department terminated the plaintiffs' employment because of allegations that they used excessive force against an inmate in violation of the internal rules of the department and 103 Code Mass. Regs. § 505 (2009). See G.L. c. 31, § 41 (just cause). The termination arose out of an incident in which Mullen was alleged to have punched and to have twisted an inmate's wrists, and McGuiness was alleged to have walked on the inmate's legs, after the inmate had been placed in wrist restraints following a fight with a fellow inmate. The plaintiffs appealed the termination order to the commission, where a hearing was held before a single commissioner. See G.L. c. 31, § 43. Following the recommendation of the single commissioner, the commission voted three-to-two in favor of the plaintiffs and ordered that they be reinstated. The department sought judicial review under G.L. c. 31, § 44. A judge in the Superior Court reversed the commission's decision to reinstate the plaintiffs and remanded the case to the commission with instructions that the single commissioner who conducted the hearing no longer participate in the case. See A.J. Cella, Administrative Law and Practice § 312 (1986) (Cella). Conformably with G.L. c. 31, § 43, which provides that “a person aggrieved by a decision of an appointing authority ... shall be given a hearing before a member of the commission or some disinterested person designated by the chairman of the commission,” the plaintiffs then received a de novo hearing before an administrative magistrate of the Division of Administrative Law Appeals (DALA). See generally Cella, supra at § 347, at 645–647 & n. 20. The DALA magistrate recommended that the commission affirm the department's decision to terminate the plaintiffs' employment. Because the Superior Court order precluded the participation of the single commissioner who conducted the plaintiffs' first hearing, only four of the five members of the commission voted on whether to adopt the DALA magistrate's findings of fact and recommended decision. See id. at § 1010. The vote resulted in a two-to-two tie. Consequently, the commission “dismissed” the plaintiffs' appeal. The plaintiffs then sought review of the “dismissal” order in the Superior Court. The Superior Court judge likewise concluded that the tie vote had the effect of dismissing the plaintiffs' appeal and, therefore, upheld the department's termination order. Significantly, the judge also determined that, “[w]ithout a majority vote, the [commission] did not adopt the recommended decision of the DALA [magistrate]” (emphasis supplied). Notwithstanding this view, the judge engaged in an alternative analysis in which she determined that the DALA magistrate's decision to affirm the plaintiffs' termination was supported by substantial evidence. See G.L. c. 30A, § 14. The plaintiffs sought review of the Superior Court judgment in the Appeals Court, and we transferred their appeal to this court on our own motion to bring clarity to the issue of the effect of a tie vote of the commission.
2. Discussion.General Laws c. 31, § 2, prescribes the powers and duties of the commission. Read together with G.L. c. 31, § 2 ( c ), 3G.L. c. 31, § 2 ( b ), states that the commission may:
“[H]ear and decide appeals by a person aggrieved by any decision, action, or failure to act by the [appointing authority], ... provided that no decision or action of the [appointing authority] shall be reversed or modified nor shall any action be ordered in the case of a failure of the [appointing authority] to act, except by an affirmative vote of at least three members of the commission ” (emphases supplied).
The standard adjudicatory rules of practice and procedure (standard rules), 801 Code Mass. Regs. §§ 1.00 (1998), which apply to adjudications before the commission, also are relevant.4 In pertinent part, 801 Code Mass. Regs. § 1.01(11) states:
“...
Focusing on 801 Code Mass. Regs. § 1.01(11)(d), the plaintiffs contend that a majority vote is required for the commission to adopt the DALA magistrate's decision affirming their terminations. A tie vote, according to the plaintiffs, rendered the DALA magistrate's decision a nullity, leaving them without a final decision by the commission regarding their employment status. 6 Focusing on G.L. c. 31, § 2 ( b ), the department counters that its decision to terminate the plaintiffs' employment stands because the plaintiffs did not receive the three votes necessary to reverse or modify it. As a point of commonality, the plaintiffs and the department agree with the Superior Court judge that, because there was no majority vote, the commission did not adopt the DALA magistrate's decision. In yet a third alternative, the commission suggests that 801 Code Mass. Regs. § 1.01(11)(c)(3)—which provides that the “initial decision shall become the final decision of the Agency” in the event that the commission fails to issue a final decision—governs here. “Ordinarily an agency's interpretation of its own rule is entitled to great weight.” Finkelstein v. Board of Registration in Optometry, 370 Mass. 476, 478, 349 N.E.2d 346 (1976). See Udall v. Tallman, 380 U.S. 1, 16–17, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965), quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413–414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). Although we acknowledge the commission's inability to take affirmative action, we agree with the commission that, on the narrow record here, the findings of fact and decision of the DALA magistrate affirming the department nevertheless became the final decision of the commission on account of the voting deadlock.
Title 801 Code Mass. Regs. § 1.01(11)(d) states a commonsense principle that, as a general matter, a majority is required for the commission to take affirmative action. General Laws c. 31, § 2 ( b ), provides that a specific number of votes is required to “reverse[ ] or modif[y]” the decision of an appointing authority.7 In mandating three votes only to “reverse [ ] or modif[y],” this provision implicitly establishes affirmance of the appointing authority's decision as the default position. That the decision of the appointing authority stands, absent three votes to the contrary, comports with the limited Falmouth v. Civil Serv. Comm'n, 61 Mass.App.Ct. 796, 800, 814 N.E.2d 735 (2004), quoting Cambridge v. Civil Serv. Comm'n, 43 Mass.App.Ct. 300, 304, 682 N.E.2d 923 (1997). Title 801 Code Mass. Regs. § 1.01(11)(c)(3) fills the evidentiary gap left in the event of default, by transforming the initial decision of the hearing officer into the final decision of the commission.
Here, we have the rare circumstance of a tie vote that inhibited the commission's ability to act affirmatively in response to the DALA magistrate's initial decision recommending affirmance of the department's termination order. 801 Code Mass. Regs. § 1.01(11)(d). In that sense, we agree with the parties that the commission did not adopt the DALA magistrate's recommendationsby vote. However, we conclude that the voting deadlock in this case constituted a failure to act. Id. at § 1.01(11)(c)(3). Of course, the commission did not fail to act for want of effort; it did not act because it could not, given the voting deadlock. Regardless of the reason, and in accordance with G.L. c. 31, § 2 ( b ), and 801 Code Mass. Regs. § 1.01(11)(c), the commission's failure to make a final decision resulted in the DALA magistrate's initial decision affirming the department's termination order becoming the final decision of the commission by default.8
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