279 Mass. 504 | Mass. | 1932
This is a petition for writ of mandamus. The case was referred to an auditor. It was then heard on the pleadings and the auditor’s report. The facts were found to be as stated in the auditor’s report and it was ordered that the petition be dismissed as matter of law. The case was then reported to this court for determination. The material facts are these: The police department of the city of Pittsfield is subject to the civil service laws and to valid rules and regulations of the civil service commissioners. The petitioner was appointed to the police department of Pittsfield in 1913 and served as patrolman from that time to September, 1930, with the exception of a suspension for thirty days on October 15, 1919, for drunkenness and conduct unbecoming an officer. Otherwise, his service has been satisfactory. On September 6, 1930, an incident occurred between the petitioner and the chief of police of Pittsfield, wherein the former was quite violent and threatened the latter with severe bodily injury. Several police officers smelled liquor on the breath of the petitioner. The chief of police' had reasonable ground to fear that the
It is provided by Rule 23, paragraph 2, of the Civil Service Rules, so far as here material: “Whenever a person in the Official Service is unable to work on account of sickness . . . whereby any person legally holding such position is separated from the service without fault or delinquency on his part, the name of such person shall be placed by the Commissioner on a Special List, if the applicant so requests in writing, and his name shall remain on such Special List for a period of two years from the date of such separation .... Thereafter, on requisition to fill any position, which in the judgment of the Commissioner can be filled from such Special List, the Commissioner, before certifying from the regular eligible list, may certify from the Special List
Rule 23 in its paragraphs 2 and 3 has been held to be within the scope of the enabling statute and to be valid. Police Commissioner of Boston v. Commissioner of Civil Service, 278 Mass. 507, 509, and cases collected.
The question to be determined is whether the petitioner is within the scope of that rule. That depends upon the further inquiry whether, upon the facts already summarized, the petitioner has been “separated from the service” of the police department of Pittsfield within the meaning of those words in the rule. The facts plainly show that the petitioner was not removed or suspended for cause. Procedure to accomplish that result prescribed by G. L. c. 31, § 42A, as most recently amended.by St. 1925, c. 220, § 2, has not been followed. The facts concerning the incident of September 6, 1930, are not of special significance except as they afford the setting for the present controversy. The petitioner was appointed to the police force of Pittsfield by the mayor and confirmed by the board of aldermen. See St. 1911, c. 732, Part I of which was adopted in November, 1911, as the charter of that city. His resignation appears to have been presented to those officers but was not accepted; in that action he acquiesced. He then requested and was granted a leave of absence for three months on account of ill health, but without pay. That leave of absence expired in December, 1930. It does not appear whether in truth he was able to resume performance of his duties at that time, although he stated to the mayor shortly before then that he expected that he would be able. He did not in fact present himself to the chief of police for duty until March 27, 1931, a period of something over six months after he ceased to perform service. Importance is not attached to this latter fact. It is assumed in favor of the petitioner
The precise point, then, is whether absence from duty by a policeman for the cause here disclosed, for three months, constitutes separation from the service. It has been held that absence from duty due to sickness may constitute the separation from the public service of one protected by the civil service law. Fernandez v. Mayor of New Bedford, 269 Mass. 445. Goldberg v. Commissioner of Civil Service, 274 Mass. 300. Those decisions are authority to the effect that bodily disability may constitute separation from the public service. The fact that in those cases the absent public servant happened to receive benefits under the workmen’s compensation act is irrelevant to the question whether the absence due to bodily disability constituted separation from the service.
Important rights are secured by statute to one who is a regularly appointed police officer under the civil service law. He shall hold office continuously during good behavior and cannot against his protest be removed, suspended, transferred to other service, lowered in rank or compensation, nor can his office be abolished, except upon specified proceedings to that end, including the opportunity to him to be heard before some tribunal. G. L. c. 31, § 42A, as most recently amended by St. 1925, c. 220, § 2. The statute makes no express provision touching interference due to sickness with the performance of public duty by those protected by the civil service law. Manifestly, sickness of public employees, and especially of police officers, has important bearing upon the efficiency of the public service. It concerns immediately the public welfare. • It was within the province of the civil service commission to make rules touching this subject notwithstanding the provisions of said § 42A. Rule 23 was passed to this end. That rule does not undertake to determine the period of absence from the performance of duty which shall constitute separation from the service. That is left to be ascertained from all the material circumstances in each case as controversy
The facts do not show that the petitioner has complied with the terms of that rule so as to be entitled to relief. He has not requested in writing to be put upon the special list in accordance with paragraph 2 of the rule. It does not appear that the respondent has consented to the reinstatement of the petitioner upon the request of the appointing officer and upon good cause shown, in accordance with paragraph 3 of the rule.
The facts and the governing statute distinguish the case at bar from Davie v. Lynch, 164 App. Div. (N. Y.) 517, upon which the petitioner relies.
It is not necessary to examine the petitioner’s requests for rulings one by one. There was no reversible error in their denial. The reasons leading to that conclusion have been stated.
Order dismissing petition affirmed.