Ralph v. Civil Serv. Comm'n

• Decision Date: 08 September 2021
• Docket Number: No. 20-P-977,20-P-977
• Citation: 177 N.E.3d 530,100 Mass.App.Ct. 199
• Parties: Thomas V. RALPH v. CIVIL SERVICE COMMISSION & another.
• Court: Appeals Court of Massachusetts

100 Mass.App.Ct. 199

177 N.E.3d 530

Thomas V. RALPH

v.CIVIL SERVICE COMMISSION & another.¹

No. 20-P-977

Appeals Court of Massachusetts, Worcester.

Argued April 5, 2021.

Decided September 8, 2021.

Thomas V. Ralph, Webster, pro se.

Douglas S. Martland, Assistant Attorney General, for the defendants.

Present: Ditkoff, Singh, & Englander, JJ.

DITKOFF, J.

Webster Police Sergeant Thomas V. Ralph appeals from a judgment of the Superior Court affirming the decision of the Civil Service Commission (commission) disallowing Sergeant Ralph additional points on a promotional examination for twenty-five years of service under G. L. c. 31, § 59, and additional points for previous experience in the position sought under G. L. c. 31, § 22. The commission concluded that Sergeant Ralph's prior experience as an auxiliary police officer and as a special police officer did not qualify for either preference. Agreeing with this interpretation of the two statutes, we affirm.

1. Background. a. Sergeant Ralph's background and experience. From November 1988 to June 1996, Ralph served as an auxiliary officer for the Dedham auxiliary police, working an average of sixteen to twenty hours per week. In this position, his duties included "assisting the Regular Police Officers with traffic and crowd control at town events .... He also performed traffic duties at various church gatherings, and conducted weekend patrol duties of town buildings and property, when requested by the Regular Police." He was authorized to perform paid details when requested. From January 1994 to July 1995, he served as an acting lieutenant in the Dedham auxiliary police. In this role, he supervised and trained other auxiliary police officers, "performed traffic and crowd control at public events and church gatherings," and "conducted weekend patrols of town buildings and property."

Concurrent with his service as a Dedham auxiliary police officer, Ralph served in several other law enforcement roles. From May 1989 through February 1992, he served as a part-time police officer in the Suffolk University police department, working sixteen or more hours per week. From July 1990 through June 1996, Ralph worked as an auxiliary police officer and a special police officer for the Medfield police department, working eight hours per week.² From March 1992 through March 1993, he served as a full-time campus police officer at the University of Massachusetts in Lowell. From September 1994 through March 1996, he served as a full-time police officer for Suffolk University.³

On December 12, 1995, Ralph became a permanent intermittent police officer for the Webster police department, working sixteen shifts in that capacity. On March 30, 1996, he became a full-time police officer in Webster. In August 1999, he was promoted to sergeant and retained that position at the time of his appeal of the commission's decision. b. The promotional examinations. For municipalities that have adopted the civil service regime, promotions are guided by civil service promotional examinations. Sergeant Ralph participated in four such civil service promotional examinations. In March 2017, he took the examination for Dracut police chief. In February and March 2017, he took the examination for Oxford police chief. In September 2017, he took the examination for Webster police lieutenant. In September 2018, he took the examination for Webster police chief.

c. The promotional preferences. There are various adjustments available to an examination score based on an applicant's experience or other circumstances. Sergeant Ralph claimed two different experience credits. The first was a twenty-five year promotional preference set out in G. L. c. 31, § 59. General Laws c. 31, § 59, provides, "Notwithstanding the provisions of any law or rule to the contrary, a member of a regular police force ... who has served as such for twenty-five years and who passes an examination for promotional appointment in such force shall have preference in promotion equal to that provided to veterans under the civil service rules." Because he had not worked for the Webster police department for twenty-five years at the time of the examinations,⁴ Sergeant Ralph proposed including his service as an auxiliary police officer for Dedham, as an auxiliary and special police officer for Medfield, and as a full-time police officer at the University of Massachusetts in Lowell to put him over the twenty-five year threshold.

The second preference that Sergeant Ralph requested was pursuant to G. L. c. 31, § 22, for his time spent serving as an acting lieutenant of the Dedham auxiliary police from January 1994 to July 1995. This request applied only to the promotional examination for the position of Webster police lieutenant. General Laws c. 31, § 22, provides, "In any competitive examination, an applicant shall be given credit for employment or experience in the position for which the examination is held."

d. Procedural history. The Human Resources Division (division) denied Sergeant Ralph both promotional preferences. The division stated that "[o]nly municipal Police Officer and higher ranks count toward the" twenty-five year preference, and that neither auxiliary experience nor experience as a university police officer counted.

Sergeant Ralph appealed the division's decision to the commission, and the commission granted the division's motion to dismiss the appeal. The commission agreed with the division's reasoning that G. L. c. 31, § 59, applied only to " ‘regular’ officers who have accrued 25 years of service as ‘regular’ officers," which did not include auxiliary, special, or university police officers. The commission recognized that the division had previously allowed credit under G. L. c. 31, § 22, for service as an auxiliary officer, but concluded that Sergeant Ralph's duties supervising auxiliary police officers on crowd control and weekend patrols were not comparable to the role of a regular police lieutenant.

Sergeant Ralph sought judicial review of the commission's decision in the Superior Court pursuant to G. L. c. 31, § 44, and a Superior Court judge allowed the commission's cross motion for judgment on the pleadings, denying Sergeant Ralph's motion for judgment on the pleadings. This appeal followed.

2. Standard of review. "Like the Superior Court, we review the commission's decision under G. L. c. 31, § 44." Boston Police Dep't v. Civil Serv. Comm'n, 483 Mass. 461, 469, 133 N.E.3d 322 (2019). "We may set aside the commission's decision only if " ‘the substantial rights of any party may have been prejudiced" [because the commission decision] is based on an error of law, unsupported by substantial evidence, or otherwise not in accordance with the law.’ " Spencer v. Civil Serv. Comm'n, 479 Mass. 210, 215, 93 N.E.3d 840 (2018), quoting Police Dep't of Boston v. Kavaleski, 463 Mass. 680, 689, 978 N.E.2d 55 (2012) ( Kavaleski ). The appellant "bears a heavy burden because ‘we give "due weight to the experience, technical competence, and specialized knowledge of the commission." ’ " Spencer, supra, quoting Kavaleski, supra.

Here, the commission allowed the division's motion to dismiss the appeal. A dismissal by an agency after the petitioner's presentation is not akin to a dismissal of a civil complaint pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). See Spencer, 479 Mass. at 215 n.5, 93 N.E.3d 840 ("Motions to dismiss before the commission differ somewhat from such motions under Massachusetts Rules of Civil Procedure"). Rather, 801 Code Mass. Regs. § 1.01(7)(g)(1) (1998) states, "Upon completion by the Petitioner of the presentation of his evidence, the Respondent may move to dismiss on the ground that upon the evidence, or the law, or both, the Petitioner has not established his case. The Presiding Officer may act upon the dismissal motion when presented, or during a stay or continuance of proceedings, or may wait until the close of all the evidence." This dismissal procedure allows the commission to relieve the division of the burden of presenting an affirmative case when, at the close of the petitioner's case, the commission determines that the petitioner has not met his burden. It is akin to the procedure set forth in the second and third sentences of Mass. R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974) ("After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence"). See Mattoon v. Pittsfield, 56 Mass. App. Ct. 124, 139, 775 N.E.2d 770 (2002).

Although the division styled its motion as a motion to dismiss under 801 Code Mass. Regs. § 1.01(7)(g)(1), it briefed the matter as a motion for a summary decision under 801 Code Mass. Regs. § 1.01(7)(h) (1998). Under that provision, "[w]hen a party is of the opinion there is no genuine issue of fact relating to all or part of a claim or defense and he is entitled to prevail as a matter of law, the Party may move, with or without supporting affidavits, for summary decision on the claim or defense." 801 Code Mass. Regs. § 1.01(7)(h). A summary decision, therefore, is appropriate whenever "there was no issue of material fact for which a hearing was required."

Kobrin v. Board of Registration in Med., 444 Mass. 837, 848, 832 N.E.2d 628 (2005). It is unsettled how much deference we owe to an agency's summary decision or determination that no genuine issue of fact exists. See Thomann v. Board of Registration of Real Estate Brokers & Salesmen, 481 Mass. 1006, 1009, 112 N.E.3d 770 (2018). In any event, the questions here are controlled by a proper understanding of the...