314 Mass. 76 | Mass. | 1943
This petition for a writ of mandamus was brought in the Superior Court against the members of the civil service commission, herein referred to as the commission. G. L. (Ter. Ed.) c. 13, §§ 1,2, as appearing in St. 1939, c. 238, §§ 1, 2. The commission demurred to the petition on several grounds, among them the ground that the petition "sets forth no cause or matter whatsoever entitling the petitioners [sfc3 to relief by way of a writ of mandamus.” Orders were entered sustaining the demurrer and dismissing the petition. The petitioner appealed to this court.
There was no error.
The facts alleged in the petition are, in substance, as follows: The petitioner, on December 1, 1934, was "certified for permanent employment in the city of Boston as a permanent social worker in the board of overseers of public welfare.” On or about December 30, 1941, the petitioner was "approved for transfer from the said position of permanent social worker in the service of the said city of Boston which position she has held and worked at for more than one year, to that of supervisor of attendance in the Boston school department of said city ... by a legal vote of the school committee of the said city of Boston, . . . appointing authority of said department; which vote has not been legally withdrawn or rescinded.” On or about December 31, 1941, the petitioner, "a resident of Boston, signed a request for said transfer from the position of permanent social worker, in said city to that of supervisor of attendance in said city, said positions being similar. . . . Said request for transfer being signed by the secretary of the overseers of public welfare of said city.” On or about January 2, 1942, "an application in writing for said transfer was forwarded, as required by law, to the director of civil service, by the appointing authority, the said school committee of the city of Boston.” On or about February 18, 1942, the director of civil service made a decision declining to authorize the transfer, and on or about February 22, 1942, the petitioner appealed from said decision to the commission. On or about March 10, 1942, the petitioner’s appeal was heard by the commission. On or about April 30, 1942, the commission
The petitioner seeks by her petition a writ commanding the commission to render a decision upon her appeal to the commission from the decision of the director of civil service.
Statutes relating to the transfer of a person within the classified civil service include the following: General Laws (Ter. Ed.) c. 31, § 43, provides that “every person holding office or employment in the classified public service of the commonwealth, or of any county, city or town thereof, shall hold such office or employment and shall not be removed therefrom, lowered in rank or compensation or suspended, or without his consent transferred from such office or employment to any other, except for just cause” and in accordance with certain fixed procedure. General Laws (Ter. Ed.) c. 31, § 16A, as inserted by St. 1939, c. 506, § 3, provides: “The director shall, with the approval of the commission, provide by rule for the transfer of persons
It does not appear that the director, with the approval of the commission, has provided by rule for “the transfer of persons within the classified service from offices or positions in one department to offices or positions” in some other department, as authorized by said § 16A. The present case, therefore, must be decided solely under the statutory provisions.
The statutes do not confer upon a person within the classified civil service the right to be transferred from one office or employment to another. On the contrary, the statutes protect such a person against such a transfer without his consent. § 43. Subject to certain limitations, a transfer is made by the “appointing authority” “with the consent of the director” to such transfer (§ 16A) and with the consent of the person to be transferred. § 43. And it is the “appointing authority” that must make an “application in writing to the director” for such transfer. § 16A. There is no provision in the statutes for such an application by the person in the classified civil service whose transfer is sought. Such an application would be useless, at least unless accompanied by the consent of the “appointing authority,” for the statutes specifically provide that “No such
The facts alleged in the petition, considered in the light of these statutes, fail to show that there is any matter with respect to the transfer of the petitioner that is before the commission for decision. The proceeding for transfer was instituted by the petitioner by a request signed by her which was also signed by the secretary of the board of overseers of public welfare — the department in which the petitioner was employed. We assume in favor of the petitioner that this request signed by the secretary of the board of overseers of public welfare constituted approval and consent of the “appointing authority” in the department in which she was employed. It appears also that the “appointing authority” in the department to which she sought to be transferred, the school committee, approved
But there was no such valid appeal. The only party aggrieved by the refusal of the director to consent to the transfer was the party applying for such consent, the school committee. There is, however, no allegation that the school committee appealed from the decision of the director. And the allegations of the petition, though perhaps somewhat ambiguous, are consistent with there having been no such appeal. The school committee placed on file the communication from the director reporting that he had declined to authorize the transfer. And the school committee also placed on file the petitioner’s request for a transfer. Both of these actions were consistent with the school committee’s taking no appeal from the decision of the director and accepting his decision as final. The report of the school committee to the commission “that there is no request pending for Mrs. Cooper’s transfer" also was consistent with this situation, whether the word “request" as here used refers to the petitioner’s request for a transfer which had been finally disposed of by the decision of the director without appeal therefrom by the school committee or to the school committee’s application for the transfer of the petitioner which also had been finally disposed of by the decision of the director without appeal therefrom. The fact that the school committee had originally approved and consented to the transfer, even though its vote to that effect had not been withdrawn or rescinded, did not require the school committee to press the matter beyond an adverse decision of the director by appealing therefrom to the commission.
It follows that the order sustaining the demurrer and the order that the petition be dismissed must be affirmed.
So ordered.