Massachusetts Civil Service Commission Powers Diminished

SJC Reinstates Excessive Punishment For Employee Misconduct

Employees Punished For Asserting Right To Remain Silent

In December, the Supreme Judicial Court severely narrowed the ability of employees to obtain meaningful relief from the Massachusetts Civil Service Commission. As a result of today’s unanimous decision from the highest state court, employees should consider alternatives to the Commission, such as grievance/arbitration (when provided by a collective bargaining agreement) and/or wrongful termination claims under various anti-discrimination and anti-retaliation laws.

In Town Of Falmouth v. Civil Service Commission, SJC-09652 (December 7, 2006) (for a copy of the decision, see here; http://socialaw.org/slip.htm?cid=16727&sid=120), the public employer suspended an officer for 180 days as a result of the officer’s assault on a teenager that had been harassing the officer’s son. The officer did not testify at the town hearing, but he did before the Commission. Where the alleged victim claimed that the officer grabbed him by the throat, threw him against the cruiser and repeatedly threatened the teen’s life, the officer denied the above allegations before the Commission and testified that he merely placed his hand to the teen’s chest to prevent the teen from leaving. The Commission largely found the officer’s testimony credible, finding that he placed his hand in a way that caused the teen “to fall back into a tree trunk." The Commission reduced the suspension from 180 days to 60 days.

In a decision that could reverberate throughout the Commonwealth, the SJC criticized the Commission and reinstated the 180 day suspension. Public employers will read the case as making it easier for a town to prove its case before the Commission. First, although the SJC acknowledged that the Commission hearing is “de novo” (meaning that the hearing is conducted anew at the Commission and is not bound by the Town’s decision), the SJC suggested the Commission must consider the facts as found by the town. If a town’s create a presumption of validity, then an employee is denied the promise of a new hearing. Second, public employers will contend that under this decision, the SJC mandates the Commission to draw a negative inference from an officer’s lawful invocation of his right to remain silent under state and federal law. Here, the Town did not appear to draw any negative inference from the officer’s silence; the SJC did so on its own.

This latter development may be most troubling if applied to mean that the invocation of your right to protect yourself against incriminating yourself in criminal prosecution comes at the cost of your pay or your job. This view ignores the reality for many public employees – most town hearings are simply kangaroo courts that deny due process. In these settings, an employee speaking out on his or her behalf is unlikely to make a difference. If anything, the testimony will serve to support a charge by the employer that you “lied.”

Finally, public employers will read the decision as suggesting that a town’s findings and discipline must be upheld unless the Commission finds facts that are materially different. Here, the Town found that the officer choked the teen and violated the use-of-force policy. By contrast, the Commission found that only tapped the teen’s chest and did not violate the Town policy. Remarkably, the SJC found that these differences were immaterial.

The above decision sadly reinforces that employees are more likely to receive a fair hearing under a grievance/arbitration procedure and/or from a wrongful termination lawsuit premised upon anti-discrimination or anti-retaliation laws.

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