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NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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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