7 Mass. App. Ct. 739 | Mass. App. Ct. | 1979
By this appeal the plaintiff, the former fire chief (chief) of the town of Ashland challenges the validity of his dismissal from that position by his appointing authority, the Ashland board of selectmen (board).
We summarize the procedural history of the case and the background facts necessary to an understanding of the issues, reserving elaboration on the evidence before the board for the body of this opinion. On March 3,1977, the chief received a letter from the board notifying him of somé twenty charges lodged against him, and stating the board’s intention to conduct a hearing to determine whether disciplinary action or removal would be appropriate. The chief requested specifications of the charges, which the board denied. The board convened to hold a hearing on April 6, 1977, at which neither the chief nor his counsel was present and at which no evidence was taken. By letter dated April 7, 1977, the chief was informed that, because he had failed to appear at the sched
The board accepted the invitation to add the insubordination charge to its list of grievances against the chief. New proceedings then took place over several days; four of the charges were dismissed and the board reserved judgment on the balance. On April 30, 1977, the board notified the chief in a letter signed by two of its three members that he was "discharged forthwith.”
The Evidence
A. Medical reports. Two charges asserted that the chief had failed to require and obtain medical reports prior to the return to duty of four named firefighters, who had claimed injury or disability, and that in one case the failure was "deliberate and willful.” There was testimony
B. Competency and training. Two charges asserted that the chief failed to test the competency of new firefighters or to provide training for firefighters, in-house or otherwise. Both firefighters and a former selectman testified that the department gave in-house training in the use of the apparatus once a month, and the former selectman testified that there was discussion during collective bargaining sessions about attendance by firefighters at institutions in the Commonwealth to upgrade their training, but that the recommendation was abandoned because firefighters were not paid tuition or their hourly rate for such attendance. There was no testimony to the contrary. As to competency testing of new firefighters, all the testimony indicated that the last person hired for a regular position, approximately three years before the hearing, had previously been a call firefighter,
C. Policy and regulations. Two charges asserted that the chief failed to provide a policy for response to alarms and for the operation of the fire department in his absence and the absence of other supervisory personnel. All the firefighters who testified stated that they respond to all audible alarms between 6:00 a.m. and 6:00 p.m. and to second alarms between 6:00 p.m. and 6:00 a.m. during off-duty periods. One person testified that call firefighters also respond to audible alarms twenty-four hours a day and that most firefighters have "plectrons” (home signalling devices). Some firefighters testified that these rules were written and had been posted for at least thirteen years. A former selectman testified that during the period of his service on the board suggestions had been made to the chief regarding policies of the type in issue, which the chief had implemented. There was no contrary evidence on these charges.
The policy regarding a chain of command in the chiefs absence was similarly understood and testified to by the firefighters: in the absence of the chief, the captain (the person next in command) made all necessary decisions, and if both the chief and the captain were absent the “desk man” was the person in charge. On one occasion, in 1972, the captain and the chief were simultaneously on vacation for a period of about four days. There was no testimony as to anything which occurred during that period. The chief also testified that the driver of the first piece of apparatus dispatched to a fire would be in charge at the scene.
The lack of a deputy chief in the department was also raised. There was testimony that at a meeting with the selectmen some fourteen years previously, agreement had been reached to appoint a captain in lieu of a deputy
D. Maintenance of equipment and the station. In two charges the board asserted that the chief had failed to provide a program for acquisition of firefighting equipment, that there was a complete absence of a maintenance program to keep the existing equipment in repair, and that there was a similar lack of a program to maintain the fire station. It was uncontroverted that the chief had requested new firefighting equipment several times, and that on one occasion the board had failed to include the request in the town meeting warrant and that other requests had been defeated at the town meeting; that a new ambulance and a hydraulic tool utilized to rescue victims trapped in motor vehicles (the "Jaws of Life”) had been purchased by raising money independently of the town meeting; that the chief had requested, and had been denied, the right to hire a fire department mechanic; that only minor repairs to the equipment could be accomplished at the fire station, but that the board of public works satisfactorily made any major repairs required; that a weekly work list for station maintenance was posted in the fire station and a maintenance log kept for checking equipment; that the fire station was better maintained than the police station, and that the major repairs to the station itself fell within the responsibilities of the municipal improvements committee. The selectmen produced no countervailing evidence.
E. Sick time, vacation and fill-in time. Six charges asserted that the chief was grossly incompetent in administering the town’s liability for sick time, vacation, bereavement, and fill-in time. Specifically, it was claimed that his
The captain and the chief testified as to the types of salary accounts that were maintained for the firefighters. There was no specific testimony by any witness concerning misapplication of budgeted money, falsification of the sick log, or individual discrepancies between the department’s records and the payroll warrants. There was testimony that the selectmen regularly signed the payroll. All firefighters who testified knew that they were entitled to the accrual of only sixty-five days of sick leave, and not ninety days. The chief did testify that on one occasion there was a mathematical error as to sick leave brought to his attention, which the captain corrected and which the chief had subsequently brought to the attention of “one or two selectmen.” Despite considerable questioning of the chief concerning the town’s liability policy for firefighters, the evidence indicated that the terms of the policy were established in collective bargaining sessions in which the chief did not participate. There was testimony from the town treasurer that the selectmen annually approved the checks for the policy premiums, and the chief testified that the firefighters sent forms directly to the insurance carrier, and the carrier did not supply him
F. Collective bargaining contract. Another charge asserted the chiefs gross incompetence in interpreting and administering the collective bargaining contract by giving bonuses to individuals of funds belonging to the town, and by his policies regarding overtime pay. The testimony indicated that the chief did not participate in the negotiations that led to the contract nor did he sign the agreement. The town did not provide him with a copy of the agreement, and town counsel never explained its provisions to him. There was no evidence of the payment of any bonuses by the chief nor any indication that the overtime policy established by the chief was in any way inconsistent with, or deviated from, the terms of the agreement.
G. Compensation for call firefighters. One charge accused the chief of setting compensation for call firefighters without the approval of the selectmen. However, the uncontroverted testimony of the chief, a former selectman, and a call firefighter was that the chief and the board negotiated the compensation together and that the final amount was placed on a warrant which the selectmen "evidently” signed.
H. Insubordination. The final charge stated that the chief was insubordinate because of his failure to appear at the initial public hearing scheduled on April 6, 1977, without expression of a reason that justified his absence. The sole evidence on this point came from the chief, who was asked one question as to why he did not attend the meeting. He declined to answer the question on advice of his counsel. The board pressed the point no further and made no order requiring an answer. The text of the single justice’s order returning the matter to the board with an indication that it could pursue the insubordination question was placed in evidence.
The conclusions of the board that the chief was "incompetent, inefficient and unworthy to continue in [his] position ... [and] insubordinate” in order to be sustained on review must be supported by substantial evidence on the record considered as a whole. Substantial evidence in this context has been defined as "such evidence as a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1(6), as amended through St. 1975, c. 817, §§ 1, 2. Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79, 92 (1968) (applying this standard to actions in the nature of certiorari under G. L. c. 249, § 4). Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171, 181 n.5 (1977), overruled on other grounds by LoringHills Developers Trust v. Planning Bd. of Salem, 374 Mass. 343, 349-350 (1978). Accord Boston Edison Co. v. Boston Redevelopment Authy., 374 Mass. 37, 48 (1977). We are satisfied that the evidence in this case does not meet that test.
We note first that many of the assertions made in the various charges fail to refer to any specific dates or any specific time frames. Conceivably, they concern the entire fourteen-year period of the chiefs employment by the town, an observation which casts an immediate shadow over the record. More troubling, and fatal to the selectmen’s conclusions, is the lack of affirmative evidence in the record to support any of the charges. The evidence when viewed in an unbiased, reasonable and common sense fashion, and with deference to the board’s role as the judge of credibility, tilts sharply in favor of the chiefs position on the issues. As the evidence on the various charges is sorted out it becomes clear that the chief had complied with the responsibilities assigned to him, that the selectmen had been consulted and had given their approval to many of the disputed items, that many of the job responsibilities claimed to have been breached had never been clearly assigned to the chief, and that whatever peccadilloes may have been committed were more
While the board was not "bound to give credit to testimony even though uncontradicted,” it is equally settled that "[m]ere disbelief of testimony is not proof of facts of an opposite nature or tendency,” McDonough v. Vozzela, 247 Mass. 552, 558 (1924), and that "such disbelief [of testimony] would not be equivalent of proof to the contrary.” Carmichael v. Carmichael, 324 Mass. 118, 121 (1949). Wakefields. American Sur. Co., 209 Mass. 173, 177 (1911). We are of the opinion, after a careful review of the record, that the conclusions reached by the board either were essentially based on the selectmen’s disbelief of much of the testimony, or may have been arrived at by consideration of information learned outside of the hearing. In either event the dismissal was not based on adequate cause established by the evidence. Overall, we come away from our review of the record with the impression that the chief had substantially complied with his responsibilities as set forth in G. L. c. 48, § 42, and with such other responsibilities as were assigned to him from time to time by the board.
The judgment is vacated and the matter is remanded to the Superior Court where a new judgment is to be entered voiding the dismissal, reinstating the chief to his
So ordered.
General Laws c. 48, § 42, as amended by St. 1973, c. 1048, § 1, provides that towns accepting its provisions may establish a fire department to be under the control of a chief who shall be appointed by the selectmen. The chief "may be removed for cause by the selectmen at any time after a hearing.”
The letter provided in pertinent part that "it is the decision of a majority of the Board that you are discharged forthwith as the Fire Chief of the Town of Ashland. You are further advised that this action is predicated upon the causes that: (1) You are incompetent, inefficient and unworthy to continue in the position of Fire Chief for the Town of Ashland. (2) That you have been insubordinate in your failure to appear, upon subpoena, before the Board of Selectmen, Town of Ash-land at a hearing on April 6, 1977 to answer to charges relating to disciplinary matters under the provisions of Chapter 48, Section 42. You are advised that the said Board finds sufficient reasons based upon the evidence in the testimony produced at the hearings on the aforesaid charges to establish such causes and you are hereby notified of the aforesaid action.”
The single justice’s order entered on April 14, 1977, stayed the April 7,1977, decision of the board removing the chief and noted that the parties had agreed to conduct a new hearing which would supersede the hearing held on April 6,1977, and the decision which resulted from it. It specifically provided that the new hearing would concern itself with "the charges dated March 3,1977, plus an additional charge [insubordination] as set out in the [decision] dated April 7,1977.” The judge ruled that the board’s letter listing an additional charge of insubordination "violated both their own agreement with the plaintiff and the... order of [the single justice.]” He thus took the position that the board was barred by the single justice from raising the insubordination allegation at the new hearing, and that by using it as a basis for the dismissal they had committed an "error of law.” However, the order of the single justice expressly contemplated that the board might take up the question of the chiefs failure to attend the April 6, 1977, hearing as possible cause for his discharge.
On review in the nature of certiorari the question whether the conclusions reached by the board are supported by substantial evidence is open for consideration. As we said in Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171, 181 n.5 (1977), overruled on other grounds by Loring Hills Developers Trust v. Planning Bd. of
The evidence is cast against a background of the duties imposed on a fire chief by G. L. c. 48, § 42, as amended by St. 1973, c. 1048, § 1, as follows: "He shall have charge of extinguishing fires in the town and the protection of life and property in case of fire. He shall purchase subject to the approval of the selectmen and keep in repair all property and apparatus used for and by the fire department. He shall have and exercise all the powers and discharge all the duties conferred or imposed by statute upon engineers in towns except as herein provided, and shall appoint a deputy chief and such officers and firemen as he may think necessary, and may remove the same at any time for cause and after a hearing. He shall have full and absolute authority in the administration of the department, shall make all rules and regulations for its operation, shall report to the selectmen from time to time as they may require, and shall annually report to the town the condition of the department with his recommendations thereon; he shall fix the compensation of the permanent and call members of the fire department subject to the approval of the selectmen. In the expenditure of money the chief shall be subject to such further limitations as the town may from time to time prescribe.”
Call firefighters respond to fires from their homes or places of employment.