Posts tagged "Civil"

Spencer v. Civil Service Commission, et al. (Lawyers Weekly No. 10-046-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12326   LUIS S. SPENCER  vs.  CIVIL SERVICE COMMISSION & another.[1]       Suffolk.     December 4, 2017. – March 27, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.     Commissioner of Correction.  Public Employment, Resignation.  Civil Service, Decision of Civil Service Commission, Termination of employment, Findings by commission.  Jurisdiction, Civil Service Commission.  Words, “Termination of his service.”       Civil action commenced in the Superior Court Department on December 8, 2015.   The case was heard by Robert N. Tochka, J., on motions for judgment on the pleadings.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     David A. Russcol (Monica R. Shah also present) for the plaintiff. Jesse M. Boodoo, Assistant Attorney General, for the defendants.     KAFKER, J.  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. 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 […]

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Posted by Massachusetts Legal Resources - March 27, 2018 at 6:20 pm

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Lawyers Committee for Civil Rights and Economic Justice v. Court Administrator of the Trial Court, et al. (Lawyers Weekly No. 10-176-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12379   LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND ECONOMIC JUSTICE  vs.  court administrator of the Trial Court & others.[1]     November 6, 2017.     Moot Question.  Practice, Civil, Moot case.  Trial Court.  Public Records.     The Lawyers’ Committee for Civil Rights and Economic Justice (Lawyers’ Committee) appeals from a judgment of the county court dismissing as moot its petition seeking declaratory and injunctive relief requiring the respondents, who are the court administrator, office of court management, and executive office of the Trial Court, to produce certain records pursuant to the public records law.  G. L. c. 66, § 10.  We directed the parties to file memoranda addressing whether the single justice erred or abused his discretion in dismissing the case as moot.  After reviewing the parties’ submissions, we affirm the judgment.   The facts are not in dispute.  The Lawyers’ Committee requested that the respondents produce documents concerning the demographics of the security department of the Trial Court, by race and gender, and the department’s hiring and promotion practices.  The Lawyers’ Committee cited the public records law, G. L. c. 66, § 10, as the basis of its request.  In response, the respondents stated that “[a]s part of the [j]udicial branch of government, the Massachusetts Trial Court . . . is not subject to the [p]ublic [r]ecords [l]aw.[[2]] . . . Despite that exemption, we are considering your request and will respond appropriately in due course.”  The Lawyers’ Committee petitioned the supervisor of records for a determination that the requested records were public records under G. L. c. 66.  The supervisor of records responded that “[r]ecords in the custody of the [c]ourt are records of the judiciary and are outside the jurisdiction of the public records law.”  Some months later, having received no documents in response to its request, the Lawyers’ Committee filed its petition.  Thereafter, the court administrator wrote to the Lawyers’ Committee, stating that the Trial Court intended to collect responsive documents and produce them.[3]  The respondents did in fact voluntarily produce documents that were responsive to the Lawyers’ Committee’s request.   The respondents represent, as they did before the single justice, that they have produced all responsive documents in their possession, custody, or control that are not confidential or privileged.  The Lawyers’ Committee does not dispute this or claim that any documents are being wrongfully withheld.  There is nothing further that a court can order […]

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Posted by Massachusetts Legal Resources - November 6, 2017 at 9:21 pm

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In Re Civil Investigative Demand No. 2016-CPD-50 (Lawyers Weekly No. 12-149-16)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2016-2098 BLS 1 IN RE CIVIL INVESTIGATIVE DEMAND NO. 2016-CPD-50, ISSUED BY THE OFFICE OF THE ATTORNEY GENERAL ORDER ON MOTION OF GLOCK, INC. TO SET ASIDE OR MODIFY THE CIVIL INVESTIGATIVE DEMAND OR ISSUE A PROTECTIVE ORDER Glock, Inc., a manufacturer of pistols, commenced this action to set aside a Civil Investigative Demand (“CID”) issued by the Attorney General to Glock on May 26, 2016. In the alternative to a complete quashing of the CID, Glock requests that a protective order issue limiting the information that must be produced pursuant to the CID. As described below, Glock’s motion to set aside the CID is denied. Action on the motion for a protective order is deferred, as the parties are ordered to meet and confer regarding the scope of discovery guided by the general principles governing CID discovery, discussed herein. BACKGROUND The CID was issued to Glock pursuant to G.L. c. 93A, § 6. The CID recites that it is issued as “part of a pending investigation by the Office of the Attorney General into compliance with G.L. c. 93A, as well as related Massachusetts laws, regulations and common law requirements that impact gun safety and product warranties.” The CID requires production of documents from Glock pursuant to G.L. c. 93A, § 6 (1). The requests for documents are detailed 1 in twelve separate paragraphs. The general nature of the documents requested include customer complaints about safety, the company’s responses, product recalls, warranties, testing, specifications, authorized dealers and legal actions and settlements. There is no geographic limitation to the scope of documents that must be produced. The relevant time period for documents that must be produced is four years prior to the date of the CID. Upon receipt of the CID, Glock, through counsel, began communications with the Office of the Attorney General. According to Glock’s complaint (styled as a “petition”), the Attorney General agreed to an extension of the twenty-one day period allowed by statute for a recipient of a CID to move or object to the CID, to July 1, 2016. On July 1, 2016, having failed to reach an agreement with the Attorney General regarding the validity and scope of the CID, Glock filed its complaint along with an emergency motion to set aside or modify the CID. The emergency motion was denied, without prejudice to re-filing pursuant to Rule 9A of the Superior Court. On August 11, 2016, Glock served its renewed motion to set aside or modify the CID on the Attorney General. On September 15, 2016, the parties’ Rule 9A package was filed in this action. Oral argument was heard on October 19, 2016.1 […]

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Posted by Massachusetts Legal Resources - November 10, 2016 at 11:33 pm

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Thompson, et al. v. Civil Service Commission, et al. (and a companion case) (Lawyers Weekly No. 11-144-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   15-P-330                                        Appeals Court   PRESTON THOMPSON & others[1]  vs.  CIVIL SERVICE COMMISSION & another[2] (and a companion case[3]).     No. 15-P-330.   Suffolk.     May 10, 2016. – October 7, 2016.   Present:  Cypher, Blake, & Henry, JJ.     Civil Service, Police, Termination of employment, Testing, Reinstatement of personnel, Decision of Civil Service Commission.  Labor, Police, Collective bargaining, Discharge.  Municipal Corporations, Police, Collective bargaining.  Police, Discharge, Collective bargaining.  Public Employment, Police, Collective bargaining, Termination, Reinstatement of personnel.  Administrative Law, Substantial evidence.  Damages, Back pay.       Civil actions commenced in the Superior Court Department on April 3, 2013.   After consolidation, the case was heard by Judith Fabricant, J., on motions for judgment on the pleadings.     Alan H. Shapiro (John M. Becker with him) for Preston Thompson & others. Helen G. Litsas for Boston Police Department. Amy Spector, Assistant Attorney General, for Civil Service Commission.     BLAKE, J.  Between 2001 and 2006, ten officers of the Boston police department (department) submitted hair samples to the department that tested positive for cocaine.  In response, the department terminated their employment.  The ten officers appealed the terminations to the Civil Service Commission (commission).  After extensive hearings, the commission issued a decision upholding the terminations of Preston Thompson, Rudy Guity, Oscar Bridgeman, and William Bridgeforth (hereinafter, four officers), and overturning the terminations of Richard Beckers, Ronnie Jones, Jacqueline McGowan, Shawn Harris, Walter Washington, and George Downing (hereinafter, six reinstated officers or six officers), who were ordered to be reinstated with back pay and benefits to the date the commission hearings commenced. The department and each of the ten officers filed a complaint for judicial review.[4]  A judge of the Superior Court affirmed the commission’s decision, modifying only the back pay and benefits awards for the six reinstated officers to the date of each of their respective terminations.  The four officers appeal, claiming that the department lacked just cause for their terminations.  The department cross-appeals, claiming that there was substantial evidence to warrant the termination of the six reinstated officers.[5]  We affirm. Background.  1.  Legal framework.  A tenured civil service employee who is aggrieved by a disciplinary decision of an appointing authority may appeal to the commission.  See G. L. c. 31, § 41.  After finding facts anew, the commission then must determine, by a preponderance of the evidence, whether the appointing authority met […]

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Posted by Massachusetts Legal Resources - October 7, 2016 at 4:42 pm

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Skandha v. Clerk of the Superior Court for Civil Business in Suffolk County (Lawyers Weekly No. 10-168-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11811   BODHISATTVA SKANDHA  vs.  CLERK OF THE SUPERIOR COURT FOR CIVIL BUSINESS IN SUFFOLK COUNTY. September 29, 2015. Supreme Judicial Court, Superintendence of inferior courts.  Mandamus.  Practice, Civil, Action in nature of mandamus, Assembly of record.  Clerk of Court.   The petitioner, Bodhisattva Skandha, appeals from a judgment of a single justice of this court denying his petitions pursuant to G. L. c. 211, § 3, and for relief in the nature of mandamus pursuant to G. L. c. 249, § 5.  We affirm.   Background.  The petitions stem from Skandha’s effort to appeal from the dismissal of a complaint in the Superior Court that he and two other plaintiffs filed, in August, 2010, against the Committee for Public Counsel Services (CPCS) and several associated attorneys.  The plaintiffs claimed that CPCS and the attorneys had violated the plaintiffs’ due process rights by, among other things, failing to screen their new trial motions to determine whether they had any claims that would entitle them to relief from their respective convictions.  A judge in the Superior Court dismissed the complaint, in May, 2013, and it appears that Skandha timely filed a notice of appeal.[1]  The appeal was dismissed, however, in January, 2014, apparently on the basis that Skandha had failed to take the necessary steps to perfect it.[2]   Skandha subsequently timely filed a notice of appeal from the dismissal of his appeal, as he was entitled to do (in which he again indicated that there were no transcripts in the matter, see note 2, supra).  He also filed, in March, 2014, a “motion for the court to order the clerk to provide the pleadings for the plaintiffs’ appeal,” and, in June, 2014, a motion in the Superior Court asking the court “to order the clerk to assemble the record.”  Both of these motions were stamped “rejected” on June 26, 2014, and never docketed.  After his efforts to appeal stalled in the Superior Court, Skandha filed his petitions in the county court for relief in the nature of mandamus and pursuant to G. L. c. 211, § 3, asking the single justice to direct the clerk of the Superior Court to assemble the record for purposes of his appeal.  The petitions were denied without a hearing.   Discussion.  Skandha has now filed what appears to have been intended as a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. […]

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Posted by Massachusetts Legal Resources - September 29, 2015 at 7:35 pm

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City of Worcester v. Civil Service Commission (Lawyers Weekly No. 11-016-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   12-P-1844                                       Appeals Court   CITY OF WORCESTER  vs.  CIVIL SERVICE COMMISSION & another.[1] No. 12-P-1844. Suffolk.     December 6, 2013. – February 26, 2015.     Present:  Fecteau, Sullivan, & Maldonado, JJ. Practice, Civil, Review respecting civil service.  Civil Service, Police, Decision of Civil Service Commission, Termination of employment, Judicial review.  Administrative Law, Hearing, Judicial review.  Municipal Corporations, Police.  Police, Discharge.  Public Employment, Police, Termination.  Statute, Construction.       Civil action commenced in the Superior Court Department on October 22, 2010.   The case was heard by Carol S. Ball, J., on motions for judgment on the pleadings.     Leo J. Peloquin for the plaintiff. Robert L. Quinan, Jr., Assistant Attorney General, for Civil Service Commission. Meghan C. Cooper for Leon Dykas.     MALDONADO, J.  The city of Worcester (city) appeals from a judgment of the Superior Court upholding the determination of the Civil Service Commission (commission) that an appointing authority may not suspend or terminate a tenured employee for the employee’s failure to testify at a hearing pursuant to G. L. c. 31, § 41.  The city contends that because § 41 does not explicitly establish a statutory testimonial privilege and because police department rules and regulations require officers to provide truthful testimony when requested, the commission exceeded its authority and improperly intruded upon the city’s right to enforce its rules of conduct.  We conclude that the commission’s determination that, because the § 41 hearing is held for the protection of the tenured employee and not the appointing authority, the tenured employee may not be sanctioned for the employee’s failure to testify at his § 41 hearing is consistent with the statutory purpose of § 41 and entitled to substantial deference.  Therefore, we affirm. Factual background.  The relevant facts drawn from the administrative record are undisputed.  Leon Dykas was a tenured civil service employee, working as a police officer for the Worcester police department (department).  In 2008, Dykas was purported to have engaged in noncriminal misconduct involving his ex-wife in violation of a “Last Chance Settlement Agreement” into which he had entered with the department.[2]  Dykas cooperated with the department’s internal investigation and attended an investigatory interview at the department’s bureau of professional standards (BOPS) as ordered.  Following review of the BOPS report and a transcript of Dykas’s interview, the chief of police, Gary Gemme, placed Dykas on paid administrative leave pending completion of […]

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Posted by Massachusetts Legal Resources - February 26, 2015 at 8:26 pm

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Mendonca v. Civil Service Commission, et al. (Lawyers Weekly No. 11-162-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   13-P-1979                                       Appeals Court   Paul Mendonca  vs.  Civil Service Commission & another.[1] No. 13-P-1979. Suffolk.     September 15, 2014. – December 12, 2014.   Present:  Berry, Kafker, & Carhart, JJ.   Veteran.  Handicapped Persons.  Public Employment, Provisional employee, Termination, Reinstatement of personnel.  Civil Service, Termination of employment, Reinstatement of personnel.  Employment, Termination.  Administrative Law, Substantial evidence.       Civil action commenced in the Superior Court Department on January 13, 2012.   The case was heard by Garry V. Inge, J., on a motion for judgment on the pleadings.     Richard L. Neumeier (Galen Gilbert with him) for the plaintiff. Iraida J. Alvarez, Assistant Attorney General, for the defendants.      Carhart, J.  Paul Mendonca appeals from the entry of judgment in favor of the defendants following a Superior Court judge’s denial of his motion for judgment on the pleadings.  Mendonca had sought review pursuant to G. L. c. 31, § 44, of a decision by the Civil Service Commission (commission) upholding his layoff by the Executive Office of Labor and Workforce Development (EOLWD).  Mendonca alleged that the layoff violated his rights as a disabled veteran.  We agree and reverse. Background.  Mendonca is a disabled Vietnam War veteran.  He holds a bachelor of science degree in business management from Suffolk University, and a master’s degree in business administration from the University of Massachusetts.  Mendonca’s extensive work history includes management, training, and marketing in the human resources field.  He has negotiated and managed labor agreements to ensure labor law compliance; he has established and implemented human resources systems for various companies; he has recruited and trained staff; and he has secured competitive State abandoned property audit contracts for private companies. On May 3, 1999, the Commonwealth hired Mendonca as a provisional Administrator III.  A Management Questionnaire (MQ) describing Mendonca’s position shows that Mendonca was responsible for administering the Commonwealth’s federally funded Job Search/Job Readiness Program (JS/JR).  Mendonca worked closely with several State agencies, including the Departments of Transitional Assistance (DTA), Unemployment Assistance (DUA), and Career Services (DCS), and ensured that JS/JR “[wa]s operated according to Federal, State and contractual requirements.”  Mendonca’s duties included negotiating and drafting interdepartmental service agreements; specifically, he “[r]ecommend[ed] amounts and conditions for reimbursement, scope of services, program requirements, key performance objectives, budget provisions and staffing configurations to ensure contractual goals are achievable.”    On March 29, 2007, the human […]

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Posted by Massachusetts Legal Resources - December 12, 2014 at 4:11 pm

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City of Springfield v. Civil Service Commission, et al. (Lawyers Weekly No. 10-142-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11540 CITY OF SPRINGFIELD  vs.  CIVIL SERVICE COMMISSION & another.[1] Hampden.     April 8, 2014. – August 18, 2014.   Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[2] Civil Service, Provisional promotion, Termination of employment, Notice.  Labor, Civil service.  Employment, Termination.  Jurisdiction, Civil Service Commission.  Administrative Law, Evidence.  Notice, Termination of employment, Administrative hearing.  Waiver.     Civil action commenced in the Superior Court Department on July 29, 2010.   The case was heard by Bertha D. Josephson, J. on motions for judgment on the pleadings.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.   Maurice M. Cahillane, Jr. (William E. Mahoney with him) for city of Springfield. Andrew M. Batchelor, Assistant Attorney General, for Civil Service Commission. Bart W. Heemskerk for Joseph McDowell.     BOTSFORD, J.  Joseph McDowell was hired by the city of Springfield (city) in 1987 as a skilled laborer, and soon thereafter achieved the status of a permanent, tenured civil service employee of the city.  In 1993, he received the first of two provisional promotions;[3] he worked in the second of these provisional positions until 2005, when the city terminated his employment.  One issue we consider in this appeal is whether, despite being terminated from his provisional position, McDowell was entitled to appeal his termination pursuant to the relevant provisions of the civil service statute, G. L. c. 31, §§ 41–45; agreeing with the Civil Service Commission (commission), we conclude that he was.  We also consider whether the commission, in deciding McDowell’s appeal, permissibly could consider that subsequent to the city’s discharge of McDowell, he had been indicted and then pleaded guilty to the crime of filing false tax returns.  We decide that in the particular circumstances of this case, the commission was permitted to take the criminal proceeding against McDowell and its disposition into account, but that McDowell’s indictment for filing false tax returns did not qualify as an indictment “for misconduct in [McDowell’s] . . . employment” within the meaning of G. L. c. 268A, § 25, and thus a suspension based on the indictment would not have been valid. 1.  Background.  McDowell began working as a skilled laborer for the city in 1987.  In 1989, he was promoted to the position of carpenter within the city’s civil service system.  After completing his probationary period, McDowell […]

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Posted by Massachusetts Legal Resources - August 18, 2014 at 8:16 pm

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