School Committee of Salem v. Civil Service Commission

Citation348 Mass. 696,205 N.E.2d 707
PartiesSCHOOL COMMITTEE OF SALEM v. CIVIL SERVICE COMMISSION.
Decision Date18 March 1965
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

A. Kenneth Carey, Boston (Alfred A. Dobrosielski; City Sol., with him), for petitioner.

Augustus J. Camelio, Asst. Atty. Gen., for respondent.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and SPIEGEL, JJ.

WHITTEMORE, Justice.

The petitioner has appealed from the order of the Superior Court denying this petition for a writ of certiorari. G.L. c. 213, § 1D, as amended by St.1957, c. 155.

The issue is whether the February 5, 1962, action of the petitioner (the school committee), as an appointing authority (G.L. c. 31, § 43[a]), abolishing the position of senior account clerk in the school lunch program then occupied by Mrs. Catherine L. Hughes 'was justified.' G.L. c. 31, § 43(b), as amended by St.1948, c. 240. Mrs. Hughes had duly requested a hearing and review under § 43(b) and the Civil Service Commission on April 25, 1962, had accepted the report of the hearing officer that the school committee's action was not justified, and had reversed the action.

The issues in the Superior Court were properly tried on the return. Loranger v. Martha's Vineyard Regional High Sch. Dist. Sch. Comm., 338 Mass. 450, 453, 155 N.E.2d 791. The return properly included the transcript of the evidence on which the Civil Service Commission entered its order. Sullivan v. Municipal Court of the Roxbury Dist., 322 Mass. 566, 573-574, 78 N.E.2d 618. Certiorari was the appropriate remedy. Mullen v. Contributory Retirement Appeal Bd., 343 Mass. 641, 642-643, 180 N.E.2d 452. The State Administrative Procedure Act, G.L. c. 30A, is, by § 1(2) as appearing in St.1959, c. 511, inapplicable to civil service proceedings.

The intervening step of review by the District Court, provided by G.L. c. 31, §§ 43(d) and 45, is only in the case of an affirmance of the order of the appointing authority. After that step, where required, certiorari is available, Sullivan case, supra.

Review by certiorari of the proceeding before the commission is governed by G.L. c. 249, § 4. It is therein provided that where the petition is to correct errors in proceedings not according to the course of common law it 'shall be open to the petitioner to contend * * * that the evidence which formed the basis of the action complained of or the basis of any specified finding or conclusion was as matter of law insufficient to warrant such action, finding or conclusion.' Murphy v. Third Dist. Court of E. Middlesex, 316 Mass. 663, 667, 56 N.E.2d 467. See the Mullen case, supra, 343 Mass. 641, 643, 180 N.E.2d 452, 453.

The evidence before the hearing officer was insufficient to warrant his conclusion that the school committee's action was unjustified. The salient parts of his report are summarized in the margin. 1 His finding is, in essence, based on his disagreement with the committee's judgment that a reorganization which included the abolition of the position would promote efficiency and economy.

Such a decision, however, was for the school committee. Chapter 31, § 43, does not substitute the Civil Service Commission for the school committee in the operation of the school department. See MacKenzie v. School Comm. of Ipswich, 342 Mass. 612, 619, 174 N.E.2d 657; cases gathered in Cullen v. Mayor of Newton, 308 Mass. 578, 581, 32 N.E.2d 201; Dooling v. Fire Com'r of Malden, 309 Mass. 156, 34 N.E.2d 635; Murphy v. Third Dist Court of E. Middlesex, 316 Mass. 663, 668, 56 N.E.2d 467; Simonian v. Boston Redevelopment Authy., 342 Mass. 573, 581, 174 N.E.2d 429.

The school lunch program is a school committee function. G.L. c. 71, § 72. The record shows that the committee exercised its best judgment. It shows that, after deliberation, the school committee effected a reorganization that excluded Mrs. Hughes's position. That reorganization justified the abolition of the position. True, the testimony shows that Riley, who had been engaged to operate the reorganized program without the clerical assistance which Mrs. Hughes afforded, indicated to the superintendent, after his employment began, that he had need for such help and asked the superintendent if he could retain Mrs. Hughes. He said that, after thinking it over, the felt he would need clerical help. He did not, however, according to the testimony, 'make that impression known to the School Committee when he was interviewed for the position.' Riley's belated views were not binding on the school committee. They may tend to show that the committee's decision was inadvisable; on the other hand, for aught that appears, notwithstanding the views of Riley soon after he was employed, one person can efficiently and economically operate the program. In any event, no basis appears for overriding the committee's determination. Even though c. 31, § 43(b), provides for a hearing 'de novo upon all material evidence and a decision * * * upon that evidence and not merely for a review of...

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