Posts tagged "Service"

Dental Service of Massachusetts, Inc. v. Commissioner of Revenue (Lawyers Weekly No. 10-059-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12346   DENTAL SERVICE OF MASSACHUSETTS, INC.  vs. COMMISSIONER OF REVENUE.       Suffolk.     December 5, 2017. – April 13, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.     Taxation, Abatement, Insurance company, Excise.  Practice, Civil, Abatement.  Insurance, Health and accident, Group, Coverage.  Statute, Construction.  Words, “Covered persons.”       Appeal from a decision of the Appellate Tax Board.   The Supreme Judicial Court granted an application for direct appellate review.     David C. Kravitz, Assistant State Solicitor, for Commissioner of Revenue. Daniel P. Ryan (David J. Nagle also present) for the taxpayer. James Roosevelt, Jr., & Rachel M. Wertheimer, for Massachusetts Association of Health Plans, amicus curiae, submitted a brief.          BUDD, J.  The taxpayer, Dental Service of Massachusetts, Inc.,[1] is an insurer that provides dental coverage through preferred provider arrangements (PPAs).[2]  Pursuant to G. L. c. 176I, § 11, insurers operating PPAs are obligated to pay annually an excise tax equal to a specified percentage “of the gross premiums received during the preceding calendar year for coverage of covered persons residing in this [C]ommonwealth” (emphasis added).  The term “[c]overed person” is defined in the statute as “any policy holder or other person on whose behalf the organization is obligated to pay for or provide health care services.”  G. L. c. 176I, § 1. The taxpayer and the Commissioner of Revenue (commissioner) disagree regarding whether “covered persons” may sometimes refer to the employer-organizations that contract with insurers, or instead refers only to the individuals receiving health care services (in this case, dental care).[3]  That is, when an employer purchases group insurance on behalf of its employees, does the insurer owe tax on premiums paid by or on behalf of only those individuals who live in Massachusetts, as the taxpayer contends, or does the insurer owe tax on all premiums received from the Massachusetts-based employer regardless of where its individual employees reside, as the commissioner contends.  We agree with the Appellate Tax Board (board), and conclude that “covered persons” as used in G. L. c. 176I, § 11, refers solely to natural persons who, as employees, receive insurance coverage for health care services under a group insurance plan, rather than employer entities.[4] Background.  The statute governing PPAs, G. L. c. 176I, was enacted in 1988.  St. 1988, c. 23, § 65.  Chapter 176I includes an assessment provision that requires “[e]very organization . . . […]

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Posted by Massachusetts Legal Resources - April 14, 2018 at 1:21 am

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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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Service Employees International Union, Local 509, et al. v. Auditor of the Commonwealth, et al. (Lawyers Weekly No. 10-186-16)

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   SJC-12126   SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509, & others[1]  vs.  AUDITOR OF THE COMMONWEALTH & others.[2]       Suffolk.     September 6, 2016. – December 9, 2016.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Privatization Act.  Auditor.  Commissioner of Mental Health.  Public Welfare, Department of Health and Human Services.  Mental Health.  Practice, Civil, Action in nature of certiorari.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on April 8, 2016.   The case was reported by Spina, J.     Ian O. Russell (Katherine D. Shea & James F. Lemond with him) for the plaintiffs. Bryan F. Bertram, Assistant Attorney General (Daniel J. Hammond, Assistant Attorney General, with him) for the defendants.     LENK, J.  The plaintiffs, Service Employees International Union, Local 509 (SEIU), the Massachusetts Nurses Association, and the American Federation of State, County and Municipal Employees, Council 93, challenge a decision by the Auditor of the Commonwealth approving a proposed privatization contract pursuant to G. L. c. 7, §§ 52-55 (Pacheco Law).  The Pacheco Law establishes “[p]rocedures that agencies must follow when beginning the bidding process for and entering into a privatization contract.”  Massachusetts Bay Transp. Auth. v. Auditor of the Commonwealth, 430 Mass. 783, 786 (2000) (MBTA).  The Auditor of the Commonwealth must review all privatization proposals to determine if they comply with the Pacheco Law.  Id. In January, 2016, the Department of Mental Health (DMH) submitted a proposal to the Auditor that would privatize certain of its State-run mental health services.  Under the terms of the proposal, the Massachusetts Behavioral Health Partnership (MBHP), a privately owned State-wide mental health provider, would take over from DMH the provision of mental health services in the Southeast region of Massachusetts.  In March, 2016, the Auditor issued a written decision concluding that DMH’s privatization proposal met the requirements of the Pacheco Law, specifically, that the privatization was procured properly, that it would not result in a net cost to the Commonwealth, and that it would not cause a decline in the quality of mental health services provided in the Southeast region.  The plaintiffs then filed a petition in the nature of certiorari in the county court, seeking review of the Auditor’s decision.  A single justice reserved and reported the matter to the full court. We conclude that the […]

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Posted by Massachusetts Legal Resources - December 9, 2016 at 9:37 pm

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Service Employees International Union, Local 509 v. Department of Mental Health, et al. (Lawyers Weekly No. 11-180-16)

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   SJC-12035   SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509  vs.  DEPARTMENT OF MENTAL HEALTH & others.[1]     Suffolk.     September 6, 2016. – November 22, 2016.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Privatization Act.  Commissioner of Mental Health.  Commonwealth, Contracts.  Contract, Validity.  Public Employment.  Laches.  Practice, Civil, Judgment on the pleadings.       Civil action commenced in the Superior Court Department on February 15, 2012.   Following review by this court, 469 Mass. 323 (2014), the case was heard by Janet L. Sanders, J., on motions for judgment on the pleadings.   The Supreme Judicial Court granted an application for direct appellate review.     Ian O. Russell (Katherine D. Shea with him) for the plaintiff. Iraida J. Álvarez, Assistant Attorney General, for Department of Mental Health. Carl Valvo & Ariel G. Sullivan, for Advocates, Inc., & others, were present but did not argue. Mark G. Matuschak & Robert Kingsley Smith, for Pioneer Institute, Inc., were present but did not argue. Anita S. Lichtblau & Robert E. Cowden, III, for Massachusetts Council of Human Services Providers, Inc., & others, amici curiae, submitted a brief.     LENK, J.  This is the second time that the plaintiff labor union appeals from dismissal of the declaratory judgment action it first brought against the Department of Mental Health (DMH or agency) in 2012.  Service Employees International Union, Local 509 (SEIU or union) maintains that certain contracts DMH made in 2009 with private vendors are “privatization contracts” subject to the requirements of the Pacheco Law, G. L. c. 7, §§ 52-55.  The Pacheco Law establishes certain prerequisites that agencies must meet when seeking to enter into privatization contracts. Because DMH had determined that the subject contracts were not privatization contracts, however, it did not comply with those statutory prerequisites.  In bringing this action, the union seeks, among other things, a declaration invalidating the contracts on the basis of G. L. c. 7, § 54 (§ 54), which provides that no privatization contract “shall be valid” where an agency did not follow the necessary procedures. In our previous decision in this case, Service Employees Int’l Union, Local 509 v. Department of Mental Health, 469 Mass. 323, 324 (2014) (SEIU I), we rejected DMH’s contention that the union lacked standing to challenge, in a declaratory judgment action, the agency’s unilateral determination that the contracts were not […]

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Posted by Massachusetts Legal Resources - November 22, 2016 at 9:45 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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National Grid USA Service Company, Inc. v. Commissioner of Revenue (Lawyers Weekly No. 11-065-16)

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   14-P-1861                                       Appeals Court   NATIONAL GRID USA SERVICE COMPANY, INC.  vs.  COMMISSIONER OF REVENUE. No. 14-P-1861. Suffolk.     December 11, 2015. – June 8, 2016.   Present:  Cypher, Carhart, & Blake, JJ. Taxation, Abatement, Corporate excise.  Public Utilities.       Appeal from a decision of the Appellate Tax Board.     John S. Brown (Donald-Bruce Abrams with him) for the taxpayer. Brett M. Goldberg for Commissioner of Revenue.      CYPHER, J.  National Grid USA Service Company, Inc. (NGUSA) appeals from a decision of the Appellate Tax Board (board) denying its motion for summary judgment and allowing a motion to dismiss brought by the Commissioner of Revenue (commissioner) concerning the effect of a closing agreement between National Grid Holdings, Inc. (NGHI)[1] and the Internal Revenue Service (IRS) on interest deductions under G. L. c. 63, § 30(4).  The board rejected National Grid’s position that the closing agreement, which allowed a Federal deduction for a portion of the disputed interest payments, is binding on deductions allowed for State tax purpose. Background.  For background we refer to our decision in National Grid Holdings, Inc. v. Commissioner of Rev., 89 Mass. App. Ct.       (2016) (National Grid Holdings, Inc.).  Briefly, that case dealt with the question whether certain deferred subscription arrangements (DSAs), among various entities related to National Grid plc, the parent company located in the United Kingdom, constituted true indebtedness, whereby payments made pursuant to the DSAs could be deducted as interest in calculating Massachusetts corporate excise tax.  The commissioner disallowed the deductions for the 2002 tax year and National Grid appealed to the board.  This separate action arose when the board, in hearing the first appeal, declined to admit the closing agreement in evidence. Relevant here, we add the following undisputed facts from the board’s September 19, 2014, findings of fact and report.  National Grid’s tax returns for the 2002 tax year were audited by both the commissioner and the IRS.  On May 1, 2007, National Grid entered into a closing agreement with the IRS, pursuant to 26 U.S.C. § 7121 of the Internal Revenue Code (code), in connection with National Grid’s Federal tax return.[2]  As part of that agreement, the IRS allowed a Federal deduction for a portion of the amount claimed by National Grid as interest on the DSAs. As to National Grid’s 2002 Massachusetts tax return, the commissioner determined that the DSAs were […]

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Posted by Massachusetts Legal Resources - June 8, 2016 at 7:04 pm

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City of Springfield v. United Public Service Employees Union (Lawyers Weekly No. 11-035-16)

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-742                                        Appeals Court   CITY OF SPRINGFIELD  vs.  UNITED PUBLIC SERVICE EMPLOYEES UNION. No. 15-P-742. Hampden.     February 11, 2016. – March 25, 2016.   Present:  Kafker, C.J., Rubin, & Agnes, JJ. Arbitration, Collective bargaining, Authority of arbitrator, Judicial review.  Employment, Sexual harassment, Termination.  Public Policy.  Public Employment, Collective bargaining, Termination, Reinstatement of personnel.  Civil Service, Termination of employment, Reinstatement of personnel.       Civil action commenced in the Superior Court Department on January 2, 2014.   The case was heard by John S. Ferrara, J.     Gordon D. Quinn for the plaintiff. Lan T. Kantany for the defendant.     KAFKER, C.J.  The issue presented is whether an arbitrator exceeded her authority when she ordered a terminated employee reinstated without loss of pay or other rights, even though she found that he had engaged in conduct amounting to sexual harassment.  Because the mitigating circumstances the arbitrator identified supported her determination that the employer lacked just cause for termination, and her order does not preclude appropriate remedial action to address the employee’s sexual harassment, we conclude that her award does not offend public policy or require a result prohibited by statute.  We therefore affirm the Superior Court judge’s decision confirming the validity of the award. 1.  Background.  The city of Springfield (city) discharged Gregory Ashe, a long-time employee, following an investigation and hearing after a coworker complained of sexually inappropriate conduct.  Ashe, through his union, grieved the city’s decision to terminate his employment.  Pursuant to the parties’ collective bargaining agreement (CBA), the case was submitted to an arbitrator.  The parties presented the following question:  ”Was the termination of the Grievant Gregory Ashe supported by just cause?  If not, what shall be the remedy?”  After two days of hearings, the arbitrator issued her award.  She determined that much of the alleged harassing conduct did occur, but found that mitigating circumstances meant there was not just cause for termination.  She concluded:  ”As a remedy, the Grievant is entitled to be reinstated to his position without loss of compensation or other rights.” The city sought to vacate the award in the Superior Court under G. L. c. 150C, § 11.  In its appeal, the city argued that the arbitrator exceeded her authority under the CBA by reinstating the employee in direct violation of the public policy and statutory requirements governing sexual harassment.  The judge, in […]

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Posted by Massachusetts Legal Resources - March 25, 2016 at 3:52 pm

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Evans v. Mayer Tree Service, Inc., et al. (Lawyers Weekly No. 11-024-16)

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   14-P-1642                                       Appeals Court   GEORGE EVANS  vs.  MAYER TREE SERVICE, INC., & others.[1] No. 14-P-1642. Worcester.     September 9, 2015. – March 3, 2016.   Present:  Meade, Wolohojian, & Milkey, JJ. Practice, Civil, Summary judgment, Relief from judgment. Commissioner of the Department of Conservation & Recreation.  Trespass.  Real Property, Trespass, Removal of timber.  Nuisance.  Consumer Protection Act, Insurance, Unfair act or practice.  Insurance, Unfair act or practice.       Civil action commenced in the Superior Court Department on January 31, 2011.   The case was heard by Daniel M. Wrenn, J., on motions for summary judgment, and a motion for relief from judgment was also heard by him.     E. Douglas Sederholm for the plaintiff. Denise M. Tremblay for Mayer Tree Service, Inc. James T. Scomby for Marquis Tree Services, Inc. Elizabeth W. Morse for Farm Family Casualty Insurance Company.      MILKEY, J.  In August of 2008, an invasive, wood-boring insect known as the Asian longhorned beetle (ALH beetle) was discovered in the Worcester area.  The ALH beetle infests particular types of hardwood trees (host trees) that die as a result.  Federal and State officials mobilized quickly to address the problem.  Under the plans that they jointly developed and implemented, host trees that showed tell-tale signs of infestation were to be destroyed, together with those additional host trees that were deemed to be at high risk of infestation.  The actual tree removal work was to be done by State contractors (and their subcontractors). The plaintiff, George Evans, owns property at 14 Randolph Road in Worcester, where he lives with his wife.  There were numerous host trees at his property, including Norway maples.  It is uncontested that in February of 2009, defendant Marquis Tree Services, Inc. (Marquis),[2] entered Evans’s property and destroyed at least twenty-one Norway maples there at the specific direction of a Federal field inspector who mistakenly believed that Evans had given written permission to have all host trees on his property destroyed. The principal question before us is whether, under the particular circumstances presented, Marquis can be liable pursuant to G. L. c. 242, § 7, for destroying Evans’s trees “without license” to do so.  On cross motions for summary judgment, a Superior Court judge ruled in the defendants’ favor in a detailed and thoughtful decision.  Because we conclude that material facts remain in dispute that preclude entry of judgment […]

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Posted by Massachusetts Legal Resources - March 4, 2016 at 1:08 am

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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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