McGuinness, et al. v. Department of Correction, et al. (Lawyers Weekly No. 10-117-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11261   BENJAMIN McGUINESS & another[1]  vs.  DEPARTMENT OF CORRECTION & another.[2]     Suffolk.     March 5, 2013.  ‑  July 1, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.     Civil Service, Decision of Civil Service Commission, Judicial review, Termination of employment.  Administrative Law, Decision, Proceedings before agency.  Commissioner of Correction.  Correction Officer.  Employment, Termination.  Public Employment, Termination.       Civil action commenced in the Superior Court Department on July 10, 2008.   The case was heard by Frances A. McIntyre, J., on motions for judgment on the pleadings.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Stephen C. Pfaff for the plaintiffs. Carol A. Colby for Department of Correction. Robert L. Quinan, Jr., Assistant Attorney General, for Civil Service Commission, was present but did not argue.     SPINA, J.  This case concerns the effect of a tie vote on the Civil Service Commission (commission) in an appeal from a decision of the Department of Correction (department) to terminate two employees.  On this record, we conclude that the effect of the tie vote was that the initial decision of the hearing officer affirming the department’s termination order became the final decision of the commission, which, in turn, is subject to judicial review.     1.  Background.  The plaintiffs, Benjamin McGuiness and Richard Mullen, were employees of the department, assigned to the Massachusetts Alcohol and Substance Abuse Center.  In 2005, the department terminated the plaintiffs’ employment because of allegations that they used excessive force against an inmate in violation of the internal rules of the department and 103 Code Mass. Regs. § 505 (2009).  See G. L. c. 31, § 41 (just cause).  The termination arose out of an incident in which Mullen was alleged to have punched and to have twisted an inmate’s wrists, and McGuiness was alleged to have walked on the inmate’s legs, after the inmate had been placed in wrist restraints following a fight with a fellow inmate.  The plaintiffs appealed the termination order to the commission, where a hearing was held before a single commissioner.  See G. L. c. 31, § 43.  Following the recommendation of the single commissioner, the commission voted three-to-two in favor of the plaintiffs and ordered that they be reinstated.  The department sought judicial review under G. L. c. 31, § 44.  A judge in the Superior […]

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