43 Mass. App. Ct. 486 | Mass. App. Ct. | 1997
After an evidentiary hearing, the superintendent of schools for the city of Brockton terminated the employment of Ralph W. Wise as a school department custodian. The hearing
Wise appealed his discharge pursuant to G. L. c. 31, § 43, to the Civil Service Commission (commission), which assigned the matter for hearing before the Division of Administrative Law Appeals. A magistrate conducted an evidentiary hearing after which he made subsidiary findings of fact, infra, and concluded that “Mr. Wise engaged in [a] homosexual act in a public park. At that time he was not on the job, was not being paid . . . , was not on school grounds, and with a consenting adult over 60 years of age. There is no evidence that Mr. Wise was or is a threat to the children attending the Brockton Public Schools.” He further concluded that “there is no significant correlation between Mr. Wise’s conduct in D.W. Field Park and his employment . . . , nor that this conduct impairs the ‘efficiency of the public service.’ ” Because, however, Wise’s conduct resulted in his arrest and an unexcused absence from work for one day, creating a hardship for the school department, the magistrate concluded that there was just cause to discipline him. In light of a past history of attendance problems, he recommended that the order discharging Wise be modified to a one-year suspension.
Relying upon the magistrate’s findings, the commission affirmed “the action of the Appointing Authority in disciplining” Wise while at the same time accepting the recommendation of a modification of penalty. The school committee of Brockton then brought an action in the Superior Court naming Wise and the commission as defendants and seeking a review of the commission’s decision pursuant to G. L. c. 31, § 44, and G. L. c. 30A, § 14.
The term “just cause” must be construed in light of the purpose of the civil service legislation in which it appears. That purpose is “to free public servants from political pressure and arbitrary separation . . . but not to prevent the removal of those who have proved to be incompetent or unworthy to continue in the public service.” Cullen v. Mayor of Newton, 308 Mass. 578, 581 (1941). “[I]n order to carry out the legislative purpose, the appropriate inquiry is whether the employee has been guilty of substantial misconduct which adversely affects the public interest by impairing the efficiency of the public service.” Murray v. Second Dist. Ct. of E. Middlesex, 389 Mass. 508, 514 (1983).
Factual background. In the absence of a contention that facts found by the magistrate and adopted by the commission are unsupported by substantial evidence, see G. L. c. 30A, § 14(7)(e), the requisite judicial inquiry is governed by those findings. See Murray v. Second Dist. Ct. of E. Middlesex, supra at 515; Mclsaac v. Civil Serv. Commn., 38 Mass. App. Ct. 473, 474 (1995). We set forth the pertinent subsidiary findings of fact.
“1) Appellant, Ralph W. Wise, had been employed with the Brockton Public Schools as a custodian for fifteen years.
2) In October of 1990 Mr. Wise was disciplined by Brock-ton Public Schools and was suspended from his job for a period of thirty-five days.
*489 3) In September of 1992 Mr. Wise was assigned to the Gilman School on the 3-11 p.m. shift. The school houses grades 1-6.
4) On Friday, September 11, 1992 Mr. Wise was arrested at 1:45 p.m. and charged with engaging in unnatural acts at the D.W. Field Park in Brockton.
5) Arrested with Mr. Wise was one, William Sheldon, a male over 60 years of age.
6) Officer John Carr of the Brockton Park Police observed Mr. Wise and Mr. Sheldon in the woods. He observed Mr. Wise standing with his pants pulled down and his penis exposed. The other male, Mr. Sheldon, was kneeling in front of Mr. Wise with his mouth on Mr. Wise’s penis performing oral sex on him.
7) Due to his observations Officer Carr arrested both Mr. Wise and Mr. Sheldon and charged them with violating M.G.L. Ch. 272 sec. 35 committing unnatural acts.
8) Mr. Sheldon stated to Officer Carr after the arrest T was giving him a blow job, my mouth was on his penis.’
9) Due to the arrest Mr. Wise was not able to work his shift on Friday, September 11.
10) As a result of the arrest Mr. Wise’s name, address and criminal charge were printed in the local newspaper.
11) The criminal charge against Mr. Wise was dismissed, in or about February, 1993, although Officer Carr is trying to have it reinstated.”
Discussion. The duty of the commission was to apply the facts found to determine whether “there was reasonable justification for the action taken by the appointing authority in the circumstances found by the commission to have existed when the appointing authority made its decision.” Watertown v.
The judge correctly observed that “private sexual conduct is not at issue” in this case. While the commission adopted the conclusory finding of the magistrate that Wise’s “homosexual act” occurred in a “public park,” and there is a subsidiary finding indicating that Wise was in the woods of that park, no defense appears to have been made before the magistrate, nor does Wise argue to us, that the conduct in question occurred in an essentially private setting.
Implicit in the magistrate’s conclusion that Wise’s conduct did not impair public service is the apparent absence
In a limited sense, the magistrate discerned a nexus between Wise’s “unbecoming” conduct, and the day of work missed by him as a result of his arrest for that conduct. Finding that this absence created a hardship for the school department, and in light of Wise’s past history of attendance problems, the magistrate recommended a modification of the discharge to a one-year suspension. In adopting this recommendation, the commission acted well within the statutory authority of G. L. c. 31, § 43, which permits it to “modify any penalty imposed by the appointing authority.” On the evidence presented, its decision does not appear to reflect a misunderstanding of Wise’s role in the school department or to be so capricious as to require reversal in the public interest. Police Commr. of Boston v. Civil Serv. Commn., 22 Mass. App. Ct. at 370-371. The reasons for its action are supported by the record of Wise’s previous disciplinary suspension viewed in the light of his past service. Compare Faria v. Third Bristol Div. of the Dist. Ct. Dept., 14 Mass. App. Ct. 985, 986 (1982). Accordingly, we order that the judgment of the Superior Court be vacated and that judgment enter affirming the decision of the commission.
So ordered.
There being no contrary contention, we treat the superintendent and the school committee collectively as the appointing authority and the aggrieved party.
While this test was enunciated under the review provisions of G. L. c. 31, § 44, as inserted by St. 1978, c. 393, § 11, those provisions are substantially similar to the standards of review set forth in G. L. c. 30A, § 14(7)(a)-(g).
Although the quoted language derives from a decision interpreting an earlier version of G. L. c. 31, § 43, nothing in the current version of that section indicates that the task of the commission has been altered.
The parties submitted a joint pretrial memorandum to the Superior Court indicating there were no contested issues of fact.
The brief submitted by the amicus curiae devotes considerable attention to whether the conduct of which Wise is accused reasonably could be construed as having occurred in a public setting. Also, responding to arguments made in the school committee’s brief, the amicus brief argues that “possible biases of co-workers based on homophobia cannot rise to the level of impairment of the public interest.” Our decision renders it unnecessary that we determine whether to address these nonjurisdictional issues raised solely in an amicus brief. Compare Bradford v. Baystate Med. Center, 415 Mass. 202, 209 n.9 (1993).
The record does not contain a transcript of the hearing before the magistrate.