Town of Watertown v. Arria

• Decision Date: 12 September 1983
• Citation: 451 N.E.2d 443,16 Mass.App.Ct. 331
• Parties: TOWN OF WATERTOWN v. Richard ARRIA et al. 1
• Court: Appeals Court of Massachusetts

Page 443

451 N.E.2d 443

16 Mass.App.Ct. 331

TOWN OF WATERTOWN v. Richard ARRIA et al. ¹

Appeals Court of Massachusetts,

Middlesex.

Argued May 13, 1983.

Decided July 5, 1983.

Further Appellate Review Denied

Sept. 12, 1983.

Leonard E. Pass, Revere, for Richard Arria.

Gary S. Brackett, Watertown, for plaintiff.

Francis X. Bellotti, Atty. Gen., and Thomas A. Barnico, Asst. Atty. Gen., for Civ. Service Com'n, submitted a brief.

Before KASS, CUTTER and SMITH, JJ.

CUTTER, Justice.

Richard Arria was appointed a police officer in Watertown (the town) in 1970. He experienced as a police officer various difficult incidents. In 1975, he "began having trouble coping with his job ... [and] sleeping." He "became nervous and upset, and deteriorated physically and emotionally." His family physician prescribed thirty quaaludes a month and valium. For quaaludes he "developed a tolerance" and "often relied on alcohol to help him sleep." On Christmas Day, 1978, while making an arrest, he was kicked in the back and neck and suffered injury for which demerol was prescribed. In May, 1979, a board certified psychiatrist "treated him for severe agitated depression, phobias, nightmares, [and] dizziness." He prescribed "therapeutic, non-addictive drugs," removed him from valium, quaaludes, and demerol, and advised discontinuance of the use of alcohol.

In November, 1979, Arria applied for accidental disability retirement (G.L. c. 32, § 7, as amended through St.1978, c. 487, § 6) claiming among other ailments, "[d]epressive neurosis, dorsal and cervical neck syndrome with somatic disfunction," and "[l]umbo-sacral and sacroiliac somatic d[i]sfunction," which (with other symptoms) he alleged to have been related to "various incidents from 1975 through 1979." A medical board, noting that Arria was disabled, "did not find ... that his disability was permanent or that it was causally related to his employment." In January, 1980, after accidental disability retirement was denied, he began to improve and to reduce the medication and by May, 1980, he "was totally off drugs and alcohol" and, in the opinion of two psychiatrists, who had previously found him disabled, was able to return to full duty as a police officer.

From 1973 to 1978, Arria had averaged 12.6 sick days in excess of the fifteen days allotted each year. He, however, had not been subjected to any police department disciplinary proceedings. The Watertown selectmen, after hearing, discharged Arria on October 20, 1980. The reasons stated in the town's notice to Arria of his discharge were: "1. ... admitted dependence on alcohol and drugs over a period of more than five years .... 2. ... admitted inability to cope with the stresses and strains of ... [the] job as a [p]olice [p]atrolman over the last five years .... 3. ... poor attendance and abuse of sick leave during [the] entire period as a [p]atrolman .... 4. ... [his] record of psychiatric problems ... determined by a medical panel to be unrelated to ... employment as a ... [p]atrolman." Arria appealed to the Civil Service Commission. See G.L. c. 31, § 43, inserted by St.1978, c. 393, § 11.

The facts stated in the first two paragraphs of this opinion are those found by the commission's hearing officer. He also found that as of February 27, 1981, Arria was "not dependent on drugs or alcohol" and could "perform all the duties of a police officer." On the basis of his findings, he concluded "that it would be inappropriate to discharge ... [Arria] for a condition that is no longer present." The hearing officer added that, although Arria "took ... sick days in excess of those allotted, it was when he was not rested or when he was nervous and unable to perform his job adequately, and hence was not an abuse of sick leave. As these problems are no longer present, in all likelihood, ... [Arria's] sick leave in the future should be substantially reduced." His final conclusion was that the town "did not have just cause to discharge" Arria, and recommended that Arria be reinstated "without loss of compensation or other rights." On March 5, 1981, the commission adopted the hearing officer's findings of fact and reversed the appointing authority's action "because ... [Arria] was not dependent on drugs at the time of the discharge" and "there was not any abuse of sick leave."

The town on June 5, 1981, commenced in the Superior Court this action in the nature of certiorari to review the commission's decision. See G.L. c. 249, § 4, as appearing in St.1973, c. 1114, § 289; Commissioners of Civ. Serv. v. Municipal Court of the City of Boston, 369 Mass. 84, 90, 337 N.E.2d 682 (1975). See also G.L. c. 31, §§ 41 to 44, as appearing in St.1978, c. 393, § 11; School Committee of Salem v. Civil Serv. Commn., 348 Mass. 696, 698-699, 205 N.E.2d 707 (1965), and cases cited. Randall & Franklin, Municipal Law, § 358 (1982). A Superior Court judge heard the case on essentially the record now before us (including the proceedings of, and the evidence before, the commission). On cross-motions for summary judgment, he reversed the decision of the commission and ordered that the action of the selectmen be affirmed. From the judgment entered in accordance with the judge's order Arria appeals.

At the time of the decision of the commission on March 5, 1981, the applicable statute governing its action was G.L. c. 31, § 43, inserted by St.1978, c. 393, § 11 (see now St.1981, c. 767, § 20, approved with an emergency preamble, on January 4, 1982). The second paragraph of § 43, as here applicable, then read, "The commission shall affirm the action of the appointing authority if it finds that such action was justified. Otherwise it shall reverse such action and the person concerned shall be returned to his position without loss of compensation or other rights. The commission may also modify any penalty imposed by the appointing authority" (emphasis supplied). The emphasized language has strong tendency to indicate that the question before the commission was not whether it would have acted as the appointing authority had acted, but whether, on the facts found by the commission, there was reasonable justification for the...