38 Mass. App. Ct. 130 | Mass. App. Ct. | 1995
By letter dated February 23, 1990, the plaintiff Houshang Hamrahi, as superintendent of public works of the
After a failed appeal to the Massachusetts Contributory Retirement Appeal Board,
In their complaint, the plaintiffs claim that the board committed errors of law by conducting a de novo hearing and determining that Geddes’s discharge was not justified. They maintain that these errors adversely affected the city’s material rights and caused it substantial damage. Relying, at least in part,
“[T]he standard of judicial review under the certiorari statute takes its color from the nature of the administrative action that is being examined.” Wightman v. Superintendent, M.C.I., Walpole, 19 Mass. App. Ct. 442, 445 (1985), citing Yerardi’s Moody St. Restaurant & Lounge, Inc. v. Selectmen of Randolph, 19 Mass. App. Ct. 296, 300 (1985). The issue here is whether the board committed a substantial error of law in ordering that Geddes be reinstated without loss of pay. See Carney v. Springfield, 403 Mass. 604, 605 (1988); Springfield v. Civil Serv. Commn., 403 Mass. 612, 613 (1988). The decision of the board should be disturbed only if based on legally untenable grounds. See Forsyth Sch. for Dental Hygienists v. Board of Registration in Dentistry, 404 Mass. 211, 218 (1989).
The controlling statute, G. L. c. 32, § 16(2), as amended through St. 1982, c. 630, § 21, provides in pertinent part:
“The removal or discharge [of certain public employees] shall not become effective unless and until a written notice thereof containing a fair summary of the facts upon which such action was based has been filed with the board. The procedure set forth in subdivision (1) relative to . . . hearing if requested ... so far as applicable, shall apply to all proceedings involving such removal or discharge. Unless the board shall find that such removal or discharge was justified, such [employee] shall forthwith be restored to his office or position without loss of compensation.”
The referenced subdivision (1) of G. L. c. 32, § 16, while speaking to involuntary retirement, has been construed as applying to a discharge and requires that “the ‘head of a department’ file with the retirement board a fair summary of the facts upon which the removal is based.” Campana v.
The mandate to provide a fair summary requires that the department head, at the time of the request for hearing by the employee, “make available a record of all proceedings before the [employer].” School Comm. of Brockton v. Teachers’ Retirement Bd., 393 Mass. 256, 262 n.10 (1984). In the absence of such a record, a summary of any response made or defense raised by the employee to the accusations of the employer should be filed with the board by the department head so that the board may be assured that it has before it a fair summary of the administrative process it is reviewing. See id. at 263 n.11.
As part of a comprehensive statutory scheme, the requirement that a fair summary of the facts be filed is to be strictly interpreted and enforced. Campana v. Board of Directors of the Mass. Hous. Fin. Agency, 399 Mass. at 502 n.20. The mere filing of a letter containing the employer’s factual perspective supporting discharge does not permit the reviewing board to perform its statutory obligation. The submission of a copy of a preliminary hearing decision ordinarily will suffice if it contains a fair representation of the evidence adduced and positions taken by the employee at that hearing. The plaintiffs, without claiming the department head was responsible for the submission, argue in their brief that the hearing officer’s decision was before the board. Fairly read, the judge’s decision indicates that the head of the department did not submit either a summary of the hearing officer’s decision, or the decision itself, to the board. On this record, see note 7 supra, we are unable to conclude that the judge is in error or that the decision that is included in the record appendix submitted by the plaintiffs was filed prior to the evidentiary hearing conducted by the board.
Strict enforcement of the statutory fair summary requirement is consistent with the limited scope of review permitted to retirement boards. See Welch v. Contributory Retirement Appeal Bd., 343 Mass. 502, 508 (1962); School Comm. of Brockton v. Teachers’ Retirement Bd., 393 Mass. at 262-
In light of the provision in G. L. c. 32, § 16(2), that a “removal or discharge . . . shall not become effective unless and until... a fair summary of the facts . . . has been filed with the board,” the failure to comply strictly with the fair summary requirement nullifies the purported discharge of Geddes. Bagley v. Contributory Retirement Appeal Bd., 397 Mass. 255, 258-259 (1986). Campana v. Board of Directors of the Mass. Hous. Fin. Agency, 399 Mass. at 503. Accordingly, review of the propriety of the hearing conducted by the board is unnecessary. So much of the judgment as orders that Paul Geddes be reinstated without loss of pay
So ordered.
The parties do not contest that Geddes, a military veteran, had been employed by the city of Attleboro since 1970, had held various provisional appointments since 1984, is a member of the city’s retirement system, and, in the circumstances of his purported discharge, was entitled to an informal hearing before the “appointing authority” and then an administrative hearing before the local retirement board pursuant to G. L. c. 31, § 41, and G. L. c. 32, § 16(2), respectively.
The plaintiffs, reacting to a statement in the board’s decision that anyone aggrieved thereby “may appeal to the Contributory Retirement Appeal Board,” filed an appeal to that body which was dismissed for lack of subject matter jurisdiction. That decision, the subject of a separate action in the Superior Court, was affirmed when the board’s motion for summary judgment was allowed. There was no appeal from that judgment.
In the circumstances, an action in the nature of certiorari under G. L. c. 249, § 4, is the appropriate vehicle for redress. See Georgetown v. Essex County Retirement Bd., 29 Mass. App. Ct. 272, 273 (1990)(“The town, having no right of appeal to the District Court under [G. L. c. 32,] § 16[3] or to the Contributory Retirement Appeal Board under § 16[4], see Barrett v. Police Commr. of Boston, 347 Mass. 298, 300-301 [1964],
In a separate decision, the judge determined, on the authority of New England Power Co. v. Riley Stoker Corp., 20 Mass. App. Ct. 25, 32 (1985), that the defendants were estopped from successfully raising a timeliness defense because the city had delayed its action under G. L. c. 249, § 4, as a result of having been misled by the board’s notice of decision. That notice incorrectly indicated that an appeal from that decision could be made to the Contributory Retirement Appeal Board. While notices of appeal were filed by the defendants in the Superior Court, cross appeals were not perfected in this court. See Mass.R.A.P. 10(a), 378 Mass. 937 (1979). Accordingly, we do not review that decision.
As a preface to his statement of the undisputed factual background of the case, the judge indicated that he relied on “aflMavits and exhibits.” We find no affidavits in the record appendix other than one contained in a supplementary record appendix having to do with the dismissed proceedings before the Contributory Retirement Appeal Board.
The general principles of mitigation of loss may be applicable to any back wages award to which Geddes is entitled. See Ryan v. Superintendent of Sch. of Quincy, 374 Mass. 670, 672 (1978).