Spencer v. Civil Serv. Comm'n

• Decision Date: 27 March 2018
• Docket Number: SJC–12326
• Parties: Luis S. SPENCER v. CIVIL SERVICE COMMISSION& another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

479 Mass. 210
93 N.E.3d 840

Luis S. SPENCER
v.
CIVIL SERVICE COMMISSION& another.¹

SJC–12326

Supreme Judicial Court of Massachusetts, Suffolk..

Argued December 4, 2017
Decided March 27, 2018

David A. Russcol (Monica R. Shah also present), Boston, for the plaintiff.

Jesse M. Boodoo, Assistant Attorney General, for the defendants.

Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.

KAFKER, J.

479 Mass. 211

The issue presented is whether Luis S. Spencer, who resigned under pressure as Commissioner of Correction (commissioner) in the midst of a public investigation of his oversight of Bridgewater State Hospital, has a right, pursuant to G. L. c. 30, § 46D, to revert to a tenured civil service correction officer II position he last held in 1992. Upon his resignation and the denial of his request to revert, Spencer filed an appeal with the Civil Service Commission (commission). The commission concluded that the right to revert to a civil service position applies only to involuntary terminations, not voluntary resignations, and because Spencer voluntarily resigned, no "termination of his service" had occurred within the meaning of G. L. c. 30, § 46D. Spencer brought a complaint against the commission and the Department of Correction (department), seeking judicial review of the commission's decision. A judge in the Superior Court affirmed the commission's decision. Spencer appealed, and we transferred his appeal to this court on our own motion. We conclude that § 46D does not provide a right to revert in these circumstances and that the commission's interpretation of this ambiguous statutory language is reasonable, as it applies the same rules for reversion to managers as it does to all other civil service employees and avoids the type of manipulation of retirement benefits at issue here. Accordingly, we affirm the decision of the commission.

1. Background. a. Statutory framework. Under the Commonwealth's civil service statutory scheme, a number of rank and file and lower level management positions, particularly in public safety, are covered by the civil service laws. A tenured civil service employee cannot be demoted, discharged, or suspended from such positions without just cause. See G. L. c. 31, §§ 1, 41. Rather, the appointing authority must follow specific procedures to terminate a tenured civil service employee, and the employee is entitled to a full hearing before such termination takes effect. G. L. c. 31, § 41. Where a tenured civil service employee is terminated for "lack of work or lack of money or abolition of positions," the employee may opt to be demoted to his or her next lowest title, instead of being terminated, "if in such next lower title or titles there is an employee junior to him in length of service." See G. L. c. 31, § 39.

93 N.E.3d 843

479 Mass. 212

This practice is known as "bumping." See Andrews v. Civil Serv. Comm'n, 446 Mass. 611, 619, 846 N.E.2d 1126 (2006). By contrast, if an employee resigns, there is no provision granting him or her the right to request his or her prior position. See G. L. c. 31, § 39.

The civil service laws do not apply to middle and upper level management positions in public service. See G. L. c. 30, §§ 46D, 46E, 46F. However, under G. L. c. 30, § 46D, a middle or upper level manager may revert or "bump" back to the tenured civil service position from which he or she has been promoted upon "termination of his [or her] service."² For middle and upper level managers who were "terminated for cause," the right to revert is more limited and must be determined by a hearing before the commission, in accordance with the standards set out in G. L. c. 31. See G. L. c. 30, § 46D.

b. Facts. We summarize the facts as recited in the commission's statement of undisputed facts. Spencer was first appointed to a civil service position in 1980 when he became a Correction Officer I (CO–I). In 1991, he was appointed captain, the first in a string of appointments to nontenured management positions. In

479 Mass. 213

1992, he received a one-day permanent appointment to Correction Officer II (CO–II), the highest tenured civil service position he would ever hold. He was granted a permanent leave of absence from this position³ and continued up the ranks of nontenured management positions, being appointed director of security in 1993, deputy administrator in 1995, superintendent in 1997, and assistant deputy commissioner in 2008.

In 2011, Spencer was appointed as commissioner by the Secretary of the Executive Office of Public Safety & Security (Secretary). His appointment was approved by the Governor. In 2014, Spencer came under intense public scrutiny for his handling of the investigation into an inmate's death at Bridgewater State Hospital. In March, 2014, Spencer received a written letter of reprimand from the Secretary for his failure to track the results of the investigation vigilantly. The letter ordered

93 N.E.3d 844

Spencer to "revisit the investigation and place the officers involved on administrative leave, pending renewed inquiry into the matter."

In July, 2014, details emerged of another incident at Bridgewater State Hospital that took place in May, 2014, this time involving the alleged abuse of a mental health patient by a correction officer. On July 22, 2014, the Secretary spoke with Spencer by telephone, and informed him that the Governor had requested Spencer's resignation. The Secretary requested that Spencer send her two letters of resignation, one dated July 23, 2014, and one dated July 28, 2014, in the event that it took a few days for the department to transition to a new commissioner.

On July 23, Spencer contacted the acting assistant deputy commissioner for human resources. Spencer asked her to confirm department practice on reverting to a prior civil service position, and to send the sample language for requesting to revert. After receiving the sample language, Spencer sent the Secretary two copies of his resignation letter, one dated July 23, 2014, and the other dated July 28, 2014. The resignation letter highlighted Spencer's accomplishments as commissioner, and concluded with the following statement: "I ask that you respectfully accept my resignation from my appointed position as the [commissioner] and accept my request to revert back to my last uniformed position,

479 Mass. 214

which was [c]aptain for the [department]."⁴ Later the same day, Spencer also sent the Secretary an additional letter specifically requesting to revert to his captain position and a second, amended reversion letter, with additional salary information. Spencer stated in his reversion letter that "[i]f this request is approved ... I would then be able to retire within a year at [eighty per cent]. If I retire from the [department] on this date I would only be eligible for 50.4 [per cent]." Spencer also sent the Secretary a page from the "Benefit Guide for the Massachusetts Employee's Retirement System," and highlighted the criteria for "certain correction officers" to be classified in "Group Four" for retirement purposes. One such requirement is that the employee be "actively performing the duties of the [Group Four] position" for twelve consecutive months immediately preceding retirement. If Spencer retired as commissioner, he would be classified in the less lucrative "Group One."

The next day, the Secretary spoke with Spencer about his resignation by telephone. The Secretary said that the Governor would accept Spencer's resignation only if it was unconditional, and that the terms of the resignation would not be negotiated. Therefore, Spencer could not include the request to revert in his resignation letter. According to Spencer, the Secretary told him that "if [he] did not allow that request to be removed, [his] employment would be terminated." The Secretary also indicated to Spencer that his request to revert from commissioner to a correction officer was "unprecedented" and voiced her concerns about his continued presence in the department.

93 N.E.3d 845

She did tell him that "she would consider [his] request to be reinstated."

After their conversation, the Secretary sent Spencer a revised copy of Spencer's resignation letter. The letter was identical to the resignation letter Spencer had sent the day before, except that the Secretary had removed the request to revert. Spencer acknowledged receipt of the revised resignation letter. Internal department

479 Mass. 215

paperwork stated that the reason for Spencer's termination was "Resigned from Mgmt position 7/24/14."

Four days later, the Secretary verbally informed Spencer that his request to revert was denied. On July 30, 2014, Spencer sent a new request for reversion to the acting assistant deputy commissioner. On August 7, 2014, Spencer was informed that this request had been denied. Spencer sent a second request for reversion to the acting assistant deputy commissioner that same day. In a letter dated...