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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]
Categories: News Tags: 1014214, City, Civil, Commission, Lawyers, Service, Springfield, Weekly
Service Employees International Union, Local 509 v. Department of Mental Health (Lawyers Weekly No. 10-138-14)
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; SJCReportersjc.state.ma.us SJC-11544 SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509 vs. DEPARTMENT OF MENTAL HEALTH. Suffolk. April 7, 2014. – August 15, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Privatization Act. Commissioner of Mental Health. Auditor. Declaratory Relief. Practice, Civil, Declaratory proceeding, Standing, Parties, Failure to join party. Civil action commenced in the Superior Court Department on February 15, 2012. The case was heard by Merita A. Hopkins, J., on a motion for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Alfred Gordon O’Connell for the plaintiff. Jo Ann Shotwell Kaplan, Assistant Attorney General, for the defendant. Donald J. Siegel & James A.W. Shaw, for Massachusetts AFL-CIO, amicus curiae, submitted a brief. Gerald A. McDonough, for the Auditor of the Commonwealth, amicus curiae, submitted a brief. LENK, J. The plaintiff, Service Employees International Union, Local 509 (union), appeals from an order of a Superior Court judge dismissing its complaint for declaratory judgment pursuant to G. L. c. 231A, §§ 1, 2, and 5. In that complaint, the union alleged that the Department of Mental Health (DMH) violated the Massachusetts privatization statute, G. L. c. 7, §§ 52-55 (Pacheco Law), by entering into contracts with private entities to obtain services substantially similar to those performed by members of the union, but failing to comply with relevant statutory obligations. DMH filed an answer as well as a motion for judgment on the pleadings pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974). After a hearing, the judge granted DMH’s motion, which she treated as a motion to dismiss for lack of subject matter jurisdiction under Mass. R. Civ. P. 12 (b) (1), 365 Mass. 754 (1974). The judge determined that the union lacked both direct and associational standing to seek declaratory relief and, additionally, that the union’s failure to join necessary parties constituted a separate jurisdictional bar requiring dismissal. The judge did not err in declining to consider the union’s complaint on the basis of its failure to name all necessary parties. However, because we conclude that the union has direct standing to seek a declaratory judgment under G. L. c. 231A that would invalidate the contracts at issue, we remand the case to the Superior Court for the limited purpose of allowing the union to seek leave to amend […]
The Secret to MBTA Late Night Service: T-Passes for All Students?
One local group is attempting to revive late night public transit in Boston. South End Patch News
State House News Service Weekly Roundup: Log Flotilla
Every candidate needs a closing sales pitch, and Gabriel Gomez came up with one that sounds a bit like the fine print on the bottom of a Macy’s receipt: Take me home, try me on, return me in 17 months if you’d like a different color. The Republican businessman from Cohasset, who incidentally doesn’t much like talking about his business, tried out the pitch in his final debate earlier this week against Congressman Edward Markey. “You’ve had 37 years in D.C. to get these important things done,” Gomez said. “Give me 17 months, and I will keep my word, and I will do what I say.” Voters on Tuesday will decide whether to take him up on that offer, but late polling showed Markey extending his lead over Gomez among likely voters, with one poll from UMass Lowell declaring the Malden Democrat ahead by as many 20 points. Few believe the margin will be that large, and it’s still unclear whether the probationary term would count against Gomez’s self-imposed term limit pledge should he manage to derail Markey. Click here to subscribe to MASSterlist, a free morning newsletter by State House News Service that highlights political news from a wide array of newspapers and journals in Massachusetts and New England. While the U.S. Senate race entered its final stages, the somewhat dormant Legislature sprang to life this week, advancing bills to keep government running while budget negotiations continue, to align the state’s health care system with the Affordable Care Act and to keep ongoing IT and capital maintenance projects funded and on track. Still on hold, however, are the annual state budget and an accompanying tax bill intended to finance transportation that will go to the wire with just nine days left in the fiscal year. Senate Ways and Means Committee Chairman Stephen Brewer compared the build-up of major tax and spending bills to a “log flotilla,” noting everything can flow when one log is pulled out, but he gave little clue as to when and who would do the pulling, nor a description of the troublesome log. Addressing Sen. Bruce Tarr’s question on the status of negotiations, Brewer said, “I would like to tell the minority leader a lot, but it is in conference, so I really can’t tell him a lot of the machinations.” The machinery – a little rusty, but starting to warm up – had no problem spitting out a $ 4 billion interim spending measure filed this week by Gov. Deval Patrick and whisked through the Legislature in one day that will keep the money flowing after July 1, assuming no budget will in place for the start of the fiscal year. This […]
State House News Service Weekly Roundup: Olde Home Days
His was not the story of Deval Patrick, or Mitt Romney or Bill Weld. Argeo Paul Cellucci started local on the Board of Selectmen in his beloved town of Hudson and worked his way up: state representative, state senator, lieutenant governor, governor, ambassador. He was the Calvin Coolidge of his time, according to former Minority Leader Richard Tisei, and Democrats, Republicans and Canadians, alike, loved and respected him for it. Cellucci passed away last weekend after a battle with Lou Gehrig’s disease at the age of 65, and on Thursday he became the 13th public figure to lie in state under the State House rotunda. The memorial service and public viewing for the former governor drew a who’s-who to Beacon Hill, including Romney, Michael Dukakis, Jane Swift, faces from the Weld and Cellucci administrations who haven’t seen the inside of the capitol since the late 1990s, and even William Bulger and his old Senate rival David Locke. Above all, Cellucci was remembered as a classy public servant, one who put people before party (as Gabriel Gomez is prone to say), worked across party lines, and helped define what it is to be a successful Massachusetts Republican. He never lost a political race, had a memorable affinity for movies and played a mean game of bocce, even if his talent for the game remained in question. Click here to subscribe to MASSterlist, a free morning newsletter by State House News Service that highlights political news from a wide array of newspapers and journals in Massachusetts and New England Among the faces in the faces in the crowd on Thursday was Bulger, the former Senate President. While jurors in the murder and racketeering trial of his brother Whitey Bulger heard about a gun cache the alleged mobster kept close to Billy Bulger’s South Boston home, the aging pol quietly took in the Cellucci ceremony before venturing back into the chamber he led for 18 years to watch as Linda Dorcena Forry was sworn into the Senate. A daughter of Haitian immigrants, Forry’s swearing in was routine, but symbolic of the changing face of Boston. She takes over as the representative of a Senate district that includes Mattapan, Dorchester and South Boston, the traditionally Irish stronghold from which Bulger drew his power for 26 years. Ironically, Forry began her political career 17 years ago as a State House aide to former Rep. Charlotte Golar Richie, who is trying to make her own history running to become the first minority, female mayor of Boston. Forry mentioned her early work for Golar Richie during remarks to the Senate after she was sworn in by Patrick. […]
State House News Service Weekly Roundup: When You’ve Had a Bad Day
It could have been a turning point in the race, the moment when the lights flicked on and the much-anticipated contest finally lived up to expectations for a U.S Senate race. Would Congressman Edward Markey would finally slam the door on Gabriel Gomez and dash the GOP’s dream of Scott Brown redux? Could Gomez shine, narrow the polls and entice national Republican donors to start paying attention? Instead, all anyone wanted to talk about Thursday morning was the thrilling Bruins double overtime victory in Game 3 of the NHL Eastern Conference finals. Tuukka Rask as a write-in? At long last, Markey and Gomez shared the same debate stage. In fact, they were so close to each other in the WBZ studios they practically shared a podium. It was all Markey could do not graze Gomez as he repeatedly threw his hands up in disbelief. “Look it,” he would say over and over, refuting one charge after another lobbed his way. Click here to subscribe to MASSterlist, a free morning newsletter by State House News Service that highlights political news from a wide array of newspapers and journals in Massachusetts and New England. Neither Gomez nor Markey came across as a particularly skilled debater, but Gomez came prepared to try to knock Markey off his game and get under the veteran Congressman’s skin. It didn’t really work. The two spent an hour trading familiar campaign barbs. Gomez highlighted Markey’s resume as someone who has served in a deeply unpopular Congress since the days of Gerald Ford, reprising one-liners when he called him a “poster boy” for term limits and debuting new themes when he accused Markey of “putting party and politics before the people.” For Markey, he wanted voters to come away thinking of the new-to-politics Republican as a cookie-cutter candidate with the same “stale” Republican ideas that Massachusetts voters have repeatedly rejected. Those positions included Gomez’s opposition to an assault weapons ban, support for cutting back on Social Security benefits and a willingness to support a Supreme Court justice who would overturn Roe v. Wade. The openings that Gomez did give Markey, the Malden Democrat largely let slide. Two new polls from New England College and UMass Amherst, both conducted before the debate, showed Markey leading Gomez comfortably by 12 and 11 points, respectively. In the plus column for Gomez, the Republican was leading Markey by 17 points among independent voters in the UMass Amherst survey. Voters, however, trusted Markey over Gomez 47-32 to handle the economy, and Gomez’s supposed strength on national security with his background as a Navy SEAL did not resonate. Voters gave the edge to Markey on national security 41-33. Next week’s visit by […]
State House News Service Weekly Roundup: Death With Benefits
The specter of deceased citizens collecting welfare benefits haunted the marbled halls of the State House this week as Lt. Gov. Timothy Murray tied up the loose ends dangling on his six-and-a-half years with the Patrick administration and Attorney General Martha Coakley sued the Obama administration for allegedly putting fishermen on death row. Other than that, the arrival of steamy days in Boston ushered in a post-Memorial Day and budget week lull at the State House with the governor out of town, politicos watching two special elections and committees plodding forward with bill hearings while lawmakers wait for word from on high about their next big votes. Congressman Ed Markey and Republican Gabriel Gomez also continued sniping from a distance in the lead-up to next week’s first debate, with First Lady Michelle Obama and song lady Carole King both in Massachusetts to campaign for Markey. Click here to subscribe to MASSterlist, a free morning newsletter by State House News Service that highlights political news from a wide array of newspapers and journals in Massachusetts and New England Auditor Suzanne Bump released a blockbuster audit of the Department of Transitional Assistance alleging $ 15 million in questionable spending on welfare benefits, including 1,164 cases totaling $ 2.4 million in benefits flowing to enrollees after they were reported deceased or to recipients using a dead person’s Social Security number. If Auditor Suzanne Bump was seeking to make a name for herself as a nonpartisan watchdog of the public purse, she hit the jackpot with this one. The report played perfectly into the hands of Republicans and conservative Democrats eager to jump on any morsel of evidence that welfare benefits are being abused. What Bump might not have been expecting, however, was the tone of the pushback from Gov. Deval Patrick and his administration who had little positive to say about his former labor secretary’s work. And it’s not the first time the accuracy of Bump’s auditing has been questioned. Patrick told the Herald he found it “infuriating” that Bump’s office had only released the details on 178 cases reviewed in the audit, of which his team found that only 17 were problematic. The spin required walking a fine line: Yes, one case of fraud is too many, but a 99.9 percent success rate ain’t bad either. Asked whether the Democrat was doing a good job in her role as auditor, Patrick said, “I think it’s too soon to say.” Bump has been auditor for two and a half years. Unlike other audits, this one isn’t likely to fade soon and will feed into the debate when Senate President Therese Murray files her comprehensive welfare […]
State House News Service Weekly Roundup: Exit 10A
The rush from Beacon Hill to the westbound turnpike this week had as much to do with two of Worcester’s political sons beating feet from the capitol as with the impending Memorial Day weekend. As Lt. Gov. Timothy Murray attempted as graceful an exit as possible from politics, fellow Worcester Democrat Rep. John Fresolo made his hasty escape under an ethics cloud feeling “marginalized” by his peers and pressured to resign, which he did. If not for those two storylines, the focus may have been on the Senate’s breakneck budget debate concluding Thursday night as senators wiped their hands clean of 725 amendments and passed a $ 34 billion fiscal 2014 budget without the need for Senate President Therese Murray to threaten a Friday or Saturday workday. But on this week in late May, Tim Murray one of his wishes, for better or worse, as the gaze of the Boston political media was affixed firmly for once on central Massachusetts. Click here to subscribe to MASSterlist, a free morning newsletter by State House News Service that highlights political news from a wide array of newspapers and journals in Massachusetts and New England Murray leaves the administration after next week to take over as president and CEO of the Worcester Regional Chamber of Commerce, a job closer to home and his family that will pay at least $ 75,000 more than he was earning as a sidekick to Patrick. He’ll finish his service with one last sniff of power as acting governor when Patrick travels to Chicago on Friday to headline the Organizing for Action Illinois State Founders Summit. Murray said he was not actively looking to leave before his term expires. But his decision was not a total shocker since Murray already pulled the plug on his political career in January when he decided not to run for governor, the job many that he would pursue after running in lockstep with Patrick for so many years. For the most part, the arranged marriage between Murray and Gov. Deval Patrick turned out to be a happy and prosperous one. Since 2006, Murray has rarely, if ever, contradicted Patrick on policy or politics, and he was a foot soldier in the 2010 reelection campaign while maintaining good ties with municipal leaders who mostly like and trust the former mayor. However, the Worcester Democrat’s star started to dim in the winter of 2011 after a poorly explained pre-dawn car crash on a Sterling highway and subsequent questions about his ties to corrupt former Chelsea Housing Authority Director Michael McLaughlin. All Murray wanted to do on Wednesday was take a bow, talk about his work […]
Fallen Service Members Honored on Boston Common
With over 33,000 small American flags planted in the ground on Boston Common, dozens gathered nearby Thursday to pay tribute to the men and women who gave their lives in service to their country. Each flag represented a U.S. serviceman or woman from Massachusetts who has died in uniform since the American Civil War, and each flag was planted by volunteers with the Massachusetts Military Heroes Fund. “This display stops people directly in their tracks,” said Massachusetts Military Heroes Fund President Steve Kerrigan. “And that, of course, is exactly the point.” “We shall never forget the sacrifices made by those who gave us our freedom today,” said Boston Mayor Thomas Menino. The names of 187 military members who died in service were read aloud by family members of those lost, and an additional 187 flags were planted at the tribute. Gov. Deval Patrick called the display at the Sailors and Soldiers Memorial “an extraordinarily powerful silent tribute to the cause to freedom.” Patrick recalled the recent bombings attacks at the Boston Marathon in his remarks. “Out of the dust of that tragedy emerged a stronger sense of community, in some respects, than we’d ever seen,” Patrick said. “I hope today we’ll remember not just that sacrifice but the living remnants of sacrifice, that sense of togetherness and common cause.” The flags will remain in place until Monday evening at sunset, Kerrigan said. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch
MBTA to Launch New T-Alerts Service in June
The MBTA is rolling out an entirely new alerts system next month which includes changes from the details provided in alert messages to a visual website enhancement. Through the new system, which goes into effect June 4, users can opt to receive email or text alerts for a late bus or train or a service interruption, much like the old system. However, the new alerts “will be clearer and more detailed with additional information regarding specific trip times, service schedule changes, and distinct directional, branch and station communications,” according to anMBTA press statement released Thursday. MBTA Deputy Press Secretary Kelly Smith further explained the new system in an email to Patch: “It’s built around a core of GTFS data. GTFS, or General Transit Feed Specification, is the industry standard for sharing schedule information. This means that, for example, when dispatchers enter an alert that a bus route is on detour, they select not just the route from a list but each stop bypassed from a list of all stops served; if a commuter rail trip is delayed they can select the trip from a list of trips. Not only does this make alerts more detailed, but because the options chosen are shared with developers and are based on the same GTFS core they may be using, it opens up new opportunities in filtering, displaying, and using the information.” The system uses standards introduced by Google in 2011, according to the statement. Interested users must sign up for the new system as they will no longer receive alerts through the current system which is being discontinued. The current system was launched in 2007 and has more than 50,000 subscribers, according to the statement. Alerts will continue to appear on the MBTA website service alerts page, which will get a visual update “for clarity, ease-of-use and reader-friendliness,” according to the statement. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch