6 Mass. App. Ct. 549 | Mass. App. Ct. | 1978
A police officer while serving a probationary period was discharged by the city of New Bedford for various acts and omissions which occurred before and during that period. See G. L. c. 31, § 20D, as amended through St. 1971, c. 182, §§ 1 & 2. He complained through his attorney to the Director of Civil Service (hereinafter referred to as the "administrator” in accordance with the change in nomenclature made by St. 1974, c. 835, § 105, effective July 1, 1975). Thereupon the administrator wrote to the mayor that as the result of his "review ... it appears that the reasons are not those for which termination is authorized under § 20D.” He concluded, "It is, therefore, my decision that the termination ... may not be approved on the basis of the information furnished.” The city appealed to the Civil Service Commission (commission), which held a hearing and, by a vote of three to two, "Voted; That after review and careful consideration of all the evidence, to deny the appeal because the appointing authority’s action was not within the purview of General Laws, Chapter 31, Section 20D.” The city thereupon brought this action in the Superior Court against the commission, the administrator, and the police officer, seeking relief, in the nature of certiorari, from the decision of the commission. G. L. c. 249, § 4, as appearing in St. 1973, c. 1114, § 289. Judgment was entered reciting that "[t]he Court ha[d] duly considered the transcript of the certified record and the proceedings of the Civil Service Commission” and ordering that the decision of the commission be affirmed and the police officer be reinstated. The city appealed to this court; we reverse.
It is clear, and the defendants virtually concede, that the administrator was without power in this case to reverse the decision by the city to discharge the police officer pursuant to G. L. c. 31, § 20D. By the first paragraph of that section an increase in pay or change in duties is prohibited without approval of the administrator, and by the second paragraph the administrator is empowered to "establish procedures assuring the evaluation by ap
The structure and content of the civil service laws impels our conclusion; they provide an administrative hearing for tenured employees, G. L. c. 31, § 43, but not for probationary employees, whose rights are defined in § 20D. See Sullivan v. Commissioner of Commerce & Dev., 351 Mass. 462, 465-466 (1966); Costa v. Selectmen of Bil-lerica, ante 516 (1978), in which probationary employees contested their discharge directly in the Superior Court, seeking reinstatement in an action in the nature of mandamus. See also Scott v. Manager State Airport, Hanscom Field, 336 Mass. 372 (1957); Thibeault v. New Bedford, 342 Mass. 552 (1961), in both of which discharges under
Nor do we deem it appropriate to attempt to decide this case "on its merits” as the police officer asks us to do. Contrast Stetson v. Selectmen of Carlisle, 369 Mass. 755 (1976) (in which the record made in the lower court was sufficient to permit adjudication of a motion for summary judgment); Canney v. Municipal Court of the City of Boston, 368 Mass. at 656 n.8. The validity of the discharge by the city will depend on whether its action was taken for reasons authorized by § 20D. See Scott v. Manager State Airport, Hanscom Field, 336 Mass. at 376. The burden of showing the invalidity of the discharge is on the employee, and the determination should be made upon the presentation of evidence to a judge, who can sort out the various related reasons which were adduced and make findings and rulings which we can then review on the basis of a concrete record.
Accordingly, the judgment of the Superior Court is reversed, and the case is remanded to the Superior Court Department of the Trial Court for the entry of judgment quashing the decision of the commission and ordering that it vacate the decision of the administrator. See G. L. c. 249, § 4, last sentence, as appearing in St. 1973, c. 1114, § 289. Costs of appeal are not to be awarded to any party.
So ordered.
The quotation is from the supplementary memorandum sent to this court on behalf of the commission and the administrator, in which the police officer concurred. Supplementary memoranda on the power of the administrator and the commission in this case were requested by the court at oral argument.