369 Mass. 166 | Mass. | 1975
The case is here on exceptions, allowed and treated as a notice of appeal (see Mass. R. Civ. P. 1A, par. 7, 365 Mass. 731 [1974], Mass. R. A. P. 1A, 365 Mass. 845 [1974]), to a judgment of a single justice of this court which directed that certiorari issue to set aside a decision of the Municipal Court of the Brighton District and to affirm a decision of the Civil Service Commission dismissing a Boston patrolman from the service.
To recount the proceedings from the start: In April, 1970, Patrolman John A. Fatuto (hereafter called the respondent) was indicted in a United States District Court on charges of conspiracy to forge and utter United States postal money orders and of forging and uttering the same, to which he pleaded not guilty. The Boston police commissioner after a brief hearing suspended the re
On the same day, the police commissioner, following the procedure of G. L. c. 31, § 43, gave the respondent notice of a hearing to determine what action should be taken on a complaint against him for alleged conduct unbecoming an officer in violation of departmental regulations. The two specifications, identical except for a difference of the names mentioned, charged that the respondent about 2 p.m., Thursday, February 20, 1969, associated with a person of known bad character while that person — Peter D. Dionne in one specification, Steven L. Kervin in the other — was engaged in Committing the crime of uttering forged money orders at the Bay State Merchants National Bank in Lawrence, Massachusetts. At the conclusion of the hearing which followed, the police commissioner found by a preponderance of the evidence that the respondent was guilty of the charge made in the complaint, and discharged the respondent from his post as patrolman effective January 8, 1971.
The respondent exercised his statutory right (G. L. c. 31, § 43 [£>]) to demand a hearing by the Civil Service Commission. This took place before a hearing officer of the commission who, on the basis of his findings of subsidiary facts, recommended that the decision of the police commissioner be upheld.
Thereupon the respondent filed in the Municipal Court his petition under G. L. c. 31, § 45, to review the action of the Civil Service Commission. At the threshold the respondent was challenged by a plea in bar praying dismissal of the petition by reason of its late service. Notification of the commission’s decision had reached the respondent on January 24, 1972, and his petition for review was filed in the Municipal Court on February 23, 1972, within the thirty days allowed by G. L. c. 31, § 45; but a copy of the petition, which according to § 45 should be served on the commission and the appointing authority within the same thirty days, had in fact not been served upon them until March 22, 1972. The judge overruled the plea.
Coming to the merits, the case presented to the judge consisted simply of the record as made before the commission; this indeed is the contemplated usual situation on judicial review under § 45.
On certiorari, the single justice did not examine the correctness of the ruling on the plea in bar. Addressing himself to the merits, he said, “A review of the record indicates that there was sufficient evidence to warrant the Civil Service Commission in reaching the result which it did.” Thus the judge of the Municipal Court had himself committed legal error (see Commissioners of Civil Serv. v. Municipal Court of the City of Boston, 359 Mass. 211, 216 [1971]), and the writ therefore issued.
As to the merits, we think the testimony given by witnesses before the hearing officer supported the subsidiary findings made by that officer and those findings justified the recommendation and decision to discharge. The findings rest on substantial evidence from witnesses to the following effect. The respondent on February 20, 1969, at about 2 p.m., drove a car to the bank in
It may be surmised that the judge of the Municipal Court misconceived his role in a § 45 review of a decision of the commission. Section 45, as amended through St. 1970, c. 711, makes clear by its express terms what the cases had, in effect, earlier established:
The judge thought there was error in the hearing officer’s handling of a transcript of Dionne’s testimony at the criminal trial offered in evidence by the police commissioner and tending to show that Dionne was in the car with the respondent at the bank in Lawrence. If strict rules of evidence were applied, this former testimony might well have been excluded as inadmissible hearsay. Although counsel for the respondent had apparently cross-examined Dionne at the trial, and the testimony bore on a point relevant to the discharge proceeding, the “issues” in the discharge proceeding might diverge from those in the criminal prosecution, the parties in the two matters were not the same, and the “unavailability” of Dionne was sought to be established only through a statement by counsel for the police commissioner that the Federal authorities, who held Dionne, were unwilling to divulge his whereabouts. See W.B. Leach & P.J. Liacos, Massachusetts Evidence 192-193 (4th ed. 1967); 1 G. Mottla, Proof of Cases in Massachusetts §§ 241-244 (2d ed. 1966). Strict rules of evidence did not govern at the hearing. Yet it is conceivable that in egregious circumstances a trier’s receiving and giving weight to such hearsay might be held a mistaken exercise of his discretion. Here, however, we are relieved of any problem because it is not shown that the hearing officer in fact accepted and gave weight to the Dionne transcript. He took it de bene and said he would rule on it later; so far as appears, he did not make a distinct ruling, but he indicated that his subsidiary findings were based on the testimony of those (naming them) who had appeared before him as witnesses. In any event, we think there was enough evidence before the hearing officer to justify the recommendation of discharge and to prevent reversal of the commission’s decision under § 45 (e) even if all that related to Dionne
Of the other reasons mentioned by the judge for setting aside the discharge, we need notice only the following, the rest being palpably without basis. It is suggested that the police commissioner was under some obligation to make the charge of conduct unbecoming an officer as soon as he became aware of the facts on which he ultimately relied, which was, so it is claimed, when he first took steps to suspend the respondent. Suspension under such a procedure as G. L. c. 30, § 59, however, is nearly automatic when an officer is indicted; there is no requirement that charges looking to separation or other punishment be then brought, and it will often make for sense and fair play to wait and see what happens under the indictment.* ***
Again it is suggested that the police commissioner, by the form of his letter to the respondent advising him of the suspension proceeding, bound himself not to press for the respondent’s discharge if the respondent were acquitted after trial on the indictment. There is no reasonable foundation for this proposition.
It is then suggested that the fact of the respondent’s acquittal under the indictment in some way made it legally impossible for the commission to find him guilty of the departmental charge of “conduct unbecoming.” The point is put in a variety of ways but, however framed, it may be answered in the words of Davis, J., in Kowal v. United States, 412 F.2d 867, 970 (Ct. Cl.
Judgment affirmed.
The single justice overruled a demurrer and denied motions to dismiss addressed to the petition for certiorari. These rulings were correct and need not be rehearsed here.
General Laws c. 30, § 59, in terms deals with such suspensions of officers or employees of the Commonwealth or of any department, board, commission, or agency thereof, or of any authority created by the General Court.
In the commission proceeding the respondent moved at the outset for relief under G. L. c. 31, § 46A, second par., on the ground that the procedures of § 43 had not been followed. The application failed, and correctly so. It need not be described in detail.
See § 45, third-fifth pars.
See Haywood v. Municipal Court of the City of Boston, 359 Mass. 760 (1971); Selectmen of Dartmouth v. Third Dist. Court of Bristol, 359 Mass. 400 (1971); Commissioners of Civil Serv. v. Municipal Court of the City of Boston, 359 Mass. 211 (1971), which cites and relies on the statement of Qua, C.J., in Sullivan v. Municipal Court of the Roxbury Dist., 322 Mass. 566, 572-573 (1948); Commissioners of Civil Serv. v. Municipal Court of the City of Boston, ante, 84, 88 (1975). Cf. Commissioner of Pub. Safety v. Treadway, 368 Mass. 155, 159 & n.6 (1975).
Section 59, as amended through St. 1964, c. 528, states that the suspension shall not be used to prejudice the person involved either civilly or criminally, and that if the criminal proceedings terminate without a finding or verdict of guilty, the suspension “shall be forthwith removed” with payment for the period of suspension.
The letter, following the style of § 59 (see n.7 above), said that if the criminal proceedings ended favorably to the officer, “I will remove your suspension, and reinstate you.” This was not a guaranty against further charges.
In the present discharge proceeding the standard was that of preponderance only.