Police Com'r of Boston v. Civil Service Com'n

• Decision Date: 16 January 1996
• Docket Number: No. 94-P-593,94-P-593
• Citation: 659 N.E.2d 1190,39 Mass.App.Ct. 594
• Court: Appeals Court of Massachusetts
• Parties: POLICE COMMISSIONER OF BOSTON v. CIVIL SERVICE COMMISSION & another. 1

Page 1190

659 N.E.2d 1190

39 Mass.App.Ct. 594

POLICE COMMISSIONER OF BOSTON v. CIVIL SERVICE COMMISSION & another. ¹

No. 94-P-593.

Appeals Court of Massachusetts,

Suffolk.

Argued Oct. 6, 1995.

Decided Jan. 16, 1996.

Kevin S. McDermott, Assistant Corporation Counsel, for Police Commissioner of Boston.

Peter Sacks, Assistant Attorney General, for the defendants.

Before PERRETTA, GILLERMAN and LENK, JJ.

LENK, Justice.

This case arises from events that took place more than ten years ago. It concerns, more particularly, the Boston police commissioner's decision to discharge Charles B. Clark, a six-year member of the Boston police department. Clark had been disciplined on four prior occasions within the year preceding the events of February 21, 1985, which precipitated his termination. The case concerns as well the decision of the Civil Service Commission (the commission) to modify substantially the level of discipline imposed by the police commissioner in favor of an eighteen-month suspension plus alcohol rehabilitation. At issue on appeal from a judgment entered in the Superior Court affirming the commission's disciplinary modification is whether the commission erred in doing so in the face of its finding that the police commissioner had proved just cause for disciplining Clark for conduct "which tended to discredit himself and his department, in violation of Rule 102, sections 3 and 14 of the Rules and Regulations of the Boston Police Department."

The pertinent facts as found by the commission's hearing officer and adopted by the commission are these. In the late evening of February 21, 1985, while he was off duty, Clark approached an on-duty Massachusetts Bay Transit Authority (MBTA) police officer stationed approximately forty yards from the Boston Police Area B substation. That evening, under circumstances he could not recall, Clark had lost his personal revolver and his eyeglasses and had sustained an abrasion to his forehead. He was also intoxicated. Clark told the MBTA police officer that he wanted to report the loss of his revolver. When the MBTA police officer replied that he should instead report the loss of his gun at the nearby police substation, Clark verbally abused the officer. Clark, thereafter, did go to that police substation with the intention of reporting himself to be the victim of an assault, and proceeded to call the officer in charge "a fucking asshole."

Later that evening, after Clark had been driven to the Boston Police Area B station, he behaved in an uncooperative manner with a Boston police lieutenant. Until directly ordered by the lieutenant to do so, Clark refused to make out a report concerning a citizen's complaint lodged against him that evening. While at the Area B station, Clark told several officers that he had been the victim of an assault. Clark mentioned, however, that he could not remember any events from about one-half hour after leaving a bar and driving his car with three passengers in it until the time he was in the Area B substation.

In roughly the one-year period preceding this incident, Clark had been disciplined four times. On January 17, 1984, Clark had been suspended for thirty days for off-duty alcohol consumption that resulted in obnoxious and offensive conduct toward a fellow police officer. ² On March 21, 1984, Clark was suspended for two days for leaving his assigned sector without authorization. Six months later, on September 12, 1984, he was suspended for three days as the result of conduct unbecoming a police officer. On December 17, 1984, Clark agreed to perform eight extra hours of duty in lieu of suspension due to tardiness. In April of 1980, about a year after first becoming a police officer, Clark had also been suspended for three days for tardiness.

In connection with the events of February 21, 1985, Clark was charged with multiple violations of Boston police department rules set forth in four "specifications." ³ The department conducted a hearing pursuant to G.L. c. 31, § 41, and, based on the findings of the department hearing officer, the police commissioner found that just cause existed to support the allegations in three of the four specifications. ⁴ Because of Clark's "past disciplinary misconduct and due to the gravity of the offenses," the police commissioner discharged Clark on August 16, 1985.

Clark appealed to the commission pursuant to G.L. c. 31, § 43. After conducting an evidentiary hearing, the commission's hearing officer found that the police department had met its burden of proving just cause for disciplining Clark under only one of the three specifications charged. ⁵ The hearing officer recommended that the police commissioner's decision to discharge Clark be modified to a one-year suspension. The commission on November 6, 1985, adopted the hearing officer's findings but determined that the decision to discharge Clark should be modified to an eighteen-month suspension plus alcohol rehabilitation. The commission did so expressly because the police department had not proven two of the three specifications on which the police commissioner's decision to discharge Clark had been based as well as because of circumstances the commission found to be mitigating (i.e., Clark's belief that he was a crime victim, his lost glasses, and his head injury).

The police commissioner, in January of 1986, filed an action in the nature of certiorari in the Superior Court complaining of the commission's modification of the level of discipline. Four years later, a Superior Court judge ordered summary judgment for the police commissioner and remanded the matter to him for reconsideration of the level of discipline to be imposed on Clark in light of the commission's findings. The commission did not appeal from this judgment.

On remand, the police commissioner considered the facts as found by the commission as well as Clark's case file and history of prior discipline. The police commissioner observed that the February 21, 1985, misbehavior found by the commission included Clark's loss of his revolver, verbal abuse of fellow officers, and initial refusal to make a report. The police commissioner made reference to the January, 1984, thirty-day suspension, which had also resulted from off-duty conduct where Clark had been intoxicated and a gun was involved and he acted belligerently toward fellow officers. The police commissioner determined that the February 21, 1985, misconduct, egregious in itself, when coupled with the prior incidents, was "very serious and incompatible with public safety." In making the decision to discharge Clark, the police commissioner considered Clark's alcoholism to be a mitigating factor but one insufficient to lessen the discipline. He also considered Clark's past record, "the public interest, the efficiency of the Department and the potential liability of the City of Boston." He terminated Clark's employment on February 12, 1991.

Clark appealed to the commission, which, on May 7, 1991, conducted a further hearing apparently nonevidentiary, at which time Clark was given permission to have letters of reference sent on his behalf to the commission after the hearing. Such letters were in fact sent, attesting to Clark's mended ways. Having satisfied itself that Clark was rehabilitated and had met the requirements of its prior November 13, 1985, order, the commission concluded on August 26, 1991, that Clark "should now be restored to his employment as a Police Officer." In its decision, the commission noted that, following the issuance of the commission's November 13, 1985, order, the Superior Court had remanded the matter of the appropriate level of discipline to the police commissioner (which the commission characterized as "puzzling"), who upon reconsideration concluded that termination of employment was the appropriate discipline. The commission was silent, however, as to any consideration or weight it may have given to the police commissioner's reconsidered disciplinary decision. The police commissioner thereafter filed an action in the nature of certiorari in the Superior Court. Finding no error of law, the judge affirmed the action of the commission, from which judgment the police commissioner now appeals.

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). The police commissioner contends that the commission, contrary to G.L. c. 31, § 43, improperly...