White v. City of Boston

• Decision Date: 16 October 1998
• Citation: 428 Mass. 250,700 N.E.2d 526
• Parties: Edward WHITE v. CITY OF BOSTON & another. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 526

700 N.E.2d 526

428 Mass. 250

Edward WHITE v. CITY OF BOSTON & another. ¹

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Sept. 10, 1998.

Decided Oct. 16, 1998.

Jed M. Nosal, South Boston, for the police commissioner of Boston.

Harold L. Lichten, Boston (Bryan Decker, with him), for plaintiff.

Mary Jo Harris, Boston, for the city of Boston, was present but did not argue.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, FRIED and IRELAND, JJ.

IRELAND, Justice.

This case concerns G.L. c. 32, § 8, as amended in 1996, which establishes procedures for reinstatement of disabled civil service employees. It presents issues similar to those addressed today in O'Neill v. City Manager of Cambridge, 428 Mass. 257, 700 N.E.2d 530, 1998 WL 720134 (1998). The question before us is whether G.L. c. 32, § 8(2), mandates that the appointing authority reinstate a formerly disabled employee once the retirement board determines that the employee is capable of returning to work and an appropriate vacancy exists.

The plaintiff, Edward White, began service as a police officer with the Boston police department on June 15, 1970. He was injured in an automobile accident while on duty on September 15, 1980. After an evaluation of these injuries, the State-Boston Retirement Board (retirement board) granted the plaintiff disability retirement, effective August 31, 1981.

In March, 1994, after being retired due to disability for nearly thirteen years, an orthopedic medical panel conducted an evaluation of the plaintiff. The retirement board, acting on the results of that physical evaluation, concluded that the plaintiff was no longer disabled. The city then required the plaintiff to submit to physical and psychological examinations and a background check. In August, 1995, the city denied the plaintiff's application for reinstatement, citing problems discovered during the background check.

The plaintiff filed a complaint in the Superior Court on November 24, 1995, challenging the city's denial of his reinstatement. He renewed his claim under G.L. c. 32, § 8, after the law was rewritten by St.1996, c. 306, § 16 (Chapter 306). ² Both sides filed motions for summary judgment. The Superior Court judge allowed the plaintiff's motion for summary judgment on the G.L. c. 32, § 8, claim and ordered the defendants to reinstate the plaintiff. ³ A single justice of the Appeals Court ordered a stay of judgment pending appeal. We granted the plaintiff's application for direct appellate review and now affirm.

Summary judgment will be upheld when, "viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." McDonough v. Marr Scaffolding Co., 412 Mass. 636, 638, 591 N.E.2d 1079 (1992), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). We find no error and affirm the judge's order granting the plaintiff's motion for summary judgment. We hold that G.L. c. 32, § 8(2), compels reinstatement of employees once the retirement board clears them to return to their jobs and once a vacancy exists, and that the approval of the appointing authority is not a prerequisite to reinstatement.

Chapter 306, effective November 7, 1996, changed how the Commonwealth treats civil service employees who have retired for disability. Prior to its amendment, § 8(2) read:

"If, as a result of the report of such regional medical panel, the board finds the mental or physical condition of such retired member has so changed that he is physically able to return to the same or a similar position, the board may, with the approval of the head of any department in which a vacancy exists, order any such retired member to return and be restored to active service ..." (emphasis added).

Chapter 306 changed the law to read:

"If, after two years of the date that a member is retired under section six or seven, the regional medical panel determines that the retired member is qualified for and able to perform the essential duties of the position from which he retired or a similar position within the same department, as determined by the personnel administrator, said member shall be returned to said position, provided the position is vacant. If the position has been filled, the member shall be granted a preference for the next available position or similar position for which he is so qualified" (emphasis added).

The Legislature removed the language that gave the department head discretion to approve or to reject the reinstatement of a formerly disabled employee and replaced it with the directive that a formerly disabled, but now capable, employee "shall" be returned to the employee's previous position or one similar to it if a vacancy exists.

There is no legislative history for Chapter 306, but there is some evidence of legislative purpose. Both parties acknowledge, either in their briefs or at oral argument, that the legislation was enacted soon after publication of a local media investigation concerning medical retirees. ⁴ News articles profiled retirees who appeared to be profiting simultaneously from their disability pensions and from private careers, even though some of their private pursuits involved physical demands equal to, or greater than, those that had been imposed on them in their civil service positions.

In addition to the possible reaction to alleged abuses of the disability retirement system, this amendment may be a reaction to our decision in Milton v. Personnel Adm'r of the Dep't of Personnel Admin., 406 Mass. 818, 551 N.E.2d 14 (1990). There, we interpreted the earlier version of G.L. c. 32, § 8, and held that the law did not compel reinstatement of retired employees simply because the medical panels found the employees medically capable of returning to work. The former statute explicitly predicated reinstatement on "the approval of the head of any department." We thus rejected the position of the personnel administrator, who argued that physically qualified employees could be reinstated without department head approval. Today, as in Milton, we are constrained by clear statutory language.

1. Discretionary authority. The defendants urge us to read Chapter 306 as implicating a discretionary power in the police commissioner of Boston (commissioner), who serves as both the appointing authority and department head of the police department.

The statutory language is plain and unambiguous, and we are constrained to follow it. See, e.g., Santiago v. Commonwealth, 427 Mass. 298, 302, 693 N.E.2d 127 (1998); Plymouth v. Civil Serv. Comm'n, 426 Mass. 1, 5-6, 686 N.E.2d 188 (1997). This is not a case where following the Legislature's literal command would lead to an absurd result, or one contrary to the Legislature's manifest intention. See Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 336, 439 N.E.2d 770 1982), and cases cited. We decline, therefore, to infer approval by the commissioner as a prerequisite to reinstatement. The Legislature removed all discretionary language when it amended G.L. c. 32, § 8(2). It clearly demonstrated its intent to direct automatic reinstatement of these employees by replacing the operative language of "may, with the approval of the head of any department" with "shall." See Commonwealth v. Cook, 426 Mass. 174, 180-181, 687 N.E.2d 386 (1997), and cases cited (interpreting "shall" as mandatory, in accord with general rule of statutory interpretation).

To interpret this statute other than by its express language would render the amendment meaningless. It would mean that the Legislature removed all of the discretionary language from G.L. c. 32, § 8(2), but somehow left the discretion itself untouched. We refuse to reach this result, one which would be odd in light of the clear statutory language.

The defendants also urge us to look beyond the language of G.L. c. 32, § 8(2), in order to avoid problems that, they claim, will arise when the law is enforced. Foremost among these is the potential danger arising from a restriction on the power of appointing authorities and department heads to exercise discretion in placing employees, particularly those like police officers, in positions of public trust. Despite these concerns, the language of the statute leaves us no choice, imposing as it does a clear mandate.

The defendants contend that appointing authorities have inherent discretion to tackle issues within their expertise. They assert this as the...