Kelley, et al. v. Boston Fire Department, et al. (Lawyers Weekly No. 11-150-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1701                                       Appeals Court   JOSEPH KELLEY & others[1]  vs.  BOSTON FIRE DEPARTMENT & another.[2] No. 13-P-1701.     November 18, 2014.   Fire Fighter, Appointment.  Municipal Corporations, Fire department.  Boston.  Civil Service, Appointment.  Practice, Civil, Review of interlocutory action.     Four fire lieutenants employed by the city of Boston (city) fire department filed an appeal with the Civil Service Commission (commission) pursuant to G. L. c. 31, § 2(b) and (c), claiming to be aggrieved by the practice of appointing out-of-grade acting captains without following the provisions of the civil service laws.  The commission found that the city violated G. L. c. 31, § 31, by appointing acting captains on an emergency basis without initially notifying the Division of Human Resources (HRD), and without obtaining the consent of HRD to extend the emergency appointments after the initial thirty days.  The commission ordered the city to cease appointing acting captains in this manner, and the city ended the practice effective July 1, 2009.[3]  However, the commission ultimately dismissed the plaintiffs’ appeal, concluding that compliance with § 31 procedures was “ministerial,” and that the plaintiffs had failed to demonstrate that the appointments did not meet the statutory criteria set forth in G. L. c. 31, § 31.[4]   The lieutenants appealed the commission’s decision pursuant to G. L. c. 30A, § 14.  A judge of the Superior Court vacated the commission’s decision, concluding as a matter of law that the statutory notice and consent requirements were not ministerial, and that the burden of proving that the § 31 criteria were met rested with the city, not the plaintiffs.  The matter was remanded to the commission for a new evidentiary hearing to allow the plaintiffs to offer proof of the specific appointments made in violation of § 31 that “they should have received because of their position on the promotion list.”  The city has appealed.  No appeal was filed by the commission.   “As a general rule, an aggrieved litigant cannnot as a matter of right pursue an immediate appeal from an interlocutory order unless a statute or rule authorizes it.”  Elles v. Zoning Bd. of Appeals of Quincy, 450 Mass. 671, 673-674 (2008).  This general rule applies with equal force to appeals by litigants who appear before administrative agencies.  “[A]n order of remand to an administrative agency is interlocutory and may not be appealed from by the parties to the underlying action.”  Chief Justice for Admin. & Mgmt. of […]

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