34 Mass. App. Ct. 721 | Mass. App. Ct. | 1993
This is an appeal from a judgment of the Superior Court upholding a decision of the Civil Service Commission (commission) ordering the commissioner of public safety
After a hearing, an administrative magistrate recommended that Bisbee be returned to her position as director of operations. The commission adopted the findings and recommendation of the magistrate. The city and the commissioner brought an action in the nature of certiorari pursuant to G. L. c. 249, § 4, for review of the commission’s decision. A judge of the Superior Court upheld the decision of the commission. The issue before this court is whether the commission’s decision is “legally tenable and supported by substantial evidence on the record as a whole.” Commissioner of Health & Hosps. of Boston v. Civil Serv. Commn., 23 Mass. App. Ct. 410, 411 (1987). See Bunte v. Mayor of Boston, 361 Mass. 71, 74 (1972).
A tenured civil service employee cannot be demoted except for “just cause.” G. L. c. 31, § 41, as appearing in St. 1978, c. 393, § 11. In attempting to show just cause, the appointing authority may only rely on the reasons for demotion that it gave to the employee in writing, in this case, lack of
The mayor testified that he refused to fund the director of operations position, for three reasons: (1) the city was unable to afford two director positions in the police department
Other than the mayor’s task of balancing competing demands for city funds, the record is devoid of any evidence that the city was experiencing a shortfall of revenue which might justify the need for a reduction of police department personnel.
Here the mayor did more than limit budget appropriations. After his initial refusal to fund the position was overridden by vote of the city council, he undermined the efforts of the council and the commissioner to reestablish
Finally, the evidence in the record does not support the mayor’s claim that the director of operations merely duplicated the duties of the captain. Bisbee was solely responsible for the detectives, the drug task force, and the direct administration of officer discipline. Furthermore, the commissioner testified that after Bisbee’s demotion, her duties as director needed to be performed and were divided between the director of administration, the captain, and the commissioner.
Judgment affirmed.
At the time that Sergeant Bisbee was promoted to director of operations, there was also a director of administration in the police department.
bf course, the mayor’s task of balancing competing demands for city funds based upon the city’s policy objectives may alone be sufficient to justify his refusal to fund the position of director of operations if there is no bad faith. See Whalen v. Holyoke, 13 Mass. App. Ct. 446, 454 (1982).
“The Commissioner shall appoint on merit and fitness alone and have the power to remove all personnel of said departments . . . subject to prevailing General Laws and ordinances.” Section 1(d) of the Gardner Ordinance Creating a Department of Public Safety for the City of Gardener, as amended, November 13, 1987.
The director of operations position was originally created by a 1986 city ordinance. However, that ordinance was later amended in 1989 to require only the director of administration position and any subordinate positions that the commissioner and the city council deemed necessary. In accordance with the amended ordinance, the commissioner later petitioned the city council to reestablish the second director position.
We have held that civil service laws cannot be ignored in favor of collective bargaining agreements. Fall River v. Teamsters Union, Local 526, 27 Mass. App. Ct. 649, 651 (1989).