447 Mass. 814 | Mass. | 2006
Based on an incident between the defendant police
On appeal, the defendants argue that G. L. c. 31, § 2 (g), authorizes the commission to adopt and apply the so-called “postmark rule” to initial filings that commence appeals pursuant to G. L. c. 31, § 43. We agree that the commission properly interpreted the statute in enacting the postmark rule, but we conclude that the commission was not justified in reducing Deutschmann’s suspension to sixty days from the town’s initial 180-day finding.
1. Background. This dispute arose from an encounter that occurred on July 30, 1998, between Officer Mark Deutschmann and sixteen year old Robert Brenowitz. On that date, Deutschmann’s wife telephoned the police station to report to her husband, Officer Deutschmann, that their children and the children’s playmates were being bothered by three juveniles walking past their yard. Deutschmann, responding to that call, went home to speak with his wife. He then located the three youths and confronted them, singling out Brenowitz on the basis of his wife’s description. Brenowitz was detained by Deutschmann and transported a short distance for the purposes of isolating him from his friends before being questioned and released. The discrepancies in testimony before the commission centered around the level of force used by Deutschmann. According to Brenowitz, the defendant grabbed his neck, threw him up against the cruiser, and threatened his life several times. Testifying for the first time at the commission hearing, Deutschmann’s version of the event stands in direct conflict with
Robert Brenowitz filed a complaint against Deutschmann, prompting the Falmouth police department to open an investigation. The investigation found enough evidence to warrant a hearing by the town administrator pursuant to G. L. c. 31, § 41. This hearing resulted in the defendant’s suspension for 180 days, based on the administrator’s finding of violations of police department regulations concerning use of force, arrest, and transportation procedures and the determination that his behavior constituted conduct unbecoming an officer. The decision was hand delivered to Deutschmann on December 7, 1998. Falmouth v. Civil Serv. Comm’n, supra at 607.
By letter dated December 17, 1998, Deutschmann appealed from the town’s decision to the commission by mail. Although the envelope in which the letter was mailed is not in the record, the letter was stamped as being received by the commission six days later, on December 23, 1998.
2. Postmark rule. General Laws c. 31, § 43, allows for a hearing before the commission “[i]f a person aggrieved by a decision of an appointing authority made pursuant to [§ 41] shall, within ten days after receiving written notice of such decision, appeal in writing to the commission . . . .” There is no disagreement that Deutschmann’s statutory ten-day period to appeal from the town’s decision, excluding weekends as required under the statute, expired on December 21, 1998. Rather, the dispute here is whether Deutschmann’s notice of appeal, dated December 17, 1998, but not received by the commission until December 23, satisfies the statutory deadline.
The commission argues that Deutschmann’s appeal was timely on the basis of its rules of practice and procedure then in place.* **
The town responds that a plain reading of G. L. c. 31, § 43, requires the commission to receive the appeal within ten days of the appointing authority’s decision. According to the town, we need not invalidate rule 2.4 (a)(3) in order to agree with its position because the commission’s rule applies only to filings that occur after the appeal has been initiated — to allow otherwise would be an impermissible expansion of the commission’s jurisdiction.
The disagreement in this matter focuses on the phrase “appeal in writing,” as used in G. L. c. 31, § 43.
The relevant question left unanswered by G. L. c. 31, § 43, is the precise manner in which an appeal is deemed to have been perfected so as to comply with the ten-day deadline. The town argues that an appeal must be filed, i.e., received, in the corn-
This court has recognized the particular significance of the word “filed” in the context of an appeal. Generally, it connotes the “receipt” of the appeal, absent an express intent to the contrary. See Garrett v. Director of the Div. of Employment Sec., 394 Mass. 417, 420 (1985). The absence of the word “filed” in the relevant sentence of § 43 is persuasive evidence of a legislative intent that an appeal need not be actually received (filed) within the ten-day appeal period.
In its adoption and application of rule 2.4 (a)(3), the commis
Given the two equally plausible readings of the statutory language, we defer to the commission’s reasonable interpretation. We are guided by the familiar principle that “[a] state administrative agency in Massachusetts has considerable leeway in interpreting a statute it is charged with enforcing.” Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgt. Bd., 421 Mass. 196, 211 (1995), quoting A. Celia, Administrative Law and Practice § 747 (1986).
The town’s argument is not saved by its claim that the postmark rule is challenged only to the extent that the commission employs it in the context of initial filings. The town seeks to avoid the burdens of a facial challenge to a regulation in favor of objecting to the manner in which the commission has chosen to interpret and apply it. This argument, however, ignores the principle that our deference to an administrative agency extends beyond appropriate instances of statutory interpretation also to include the agency’s construction of its own regulations. “We only disturb an agency’s interpretation of its own regulation if the ‘interpretation is patently wrong, unreasonable, arbitrary, whimsical, or capricious.’ ” TBI, Inc. v. Board of Health of N. Andover, 431 Mass. 9, 17 (2000), quoting Brookline v. Commissioner of the Dep’t of Envtl. Quality Eng’g, 398 Mass. 404, 414 (1986). Here, the commission has not merely adopted the postmark rule in its internal regulations, it has interpreted the rule to apply to pleadings that initiate its proceedings. Such a choice is not patently wrong, unreasonable, arbitrary, whimsical, or capricious just as it does not offend the statute.
Nor does the commission’s interpretation of its postmark rule
Such a rule is also included among those that are necessary to the conduct of the commission’s proceedings. The act of mailing the December 17, 1998, letter was the first act of the “proceedings,” as that term is commonly understood, before the commission because it had the effect of initiating the appeal. Indeed, a litigant could initiate a proceeding with an untimely notice of appeal; such a proceeding would then be disposed of properly through a motion to dismiss. The commission’s authority to prescribe rules concerning the conduct of its proceedings necessarily includes requirements of initiation. Without such rules the subsequent conduct of the proceeding would not exist.
3. Reduction of penalty. We turn now to the question whether the commission was justified in reducing Deutschmann’s suspension from 180 days to sixty days. After Deutschmann appealed from the town’s determination under G. L. c. 41, § 43, the commission was required to conduct a de nova hearing for the purpose of finding facts anew. Sullivan v. Municipal Court of the Roxbury Dist., 322 Mass. 566, 572 (1948) (interpreting earlier version of statute); Leominster v. Stratton, 58 Mass. App. Ct. 726, 727-728 (2003). This requirement finds its origin in the language of the current statute: “If the commission by a preponderance of the evidence determines that there was just cause for an action taken against [Deutschmann] it shall affirm the action of the appointing authority . . . .” G. L. c. 31, § 43.
The commission’s task, however, is not to be accomplished on a wholly blank slate. After making its de nova findings of fact, the commission must pass judgment on the penalty imposed by the appointing authority, a role to which the statute speaks directly. G. L. c. 41, § 43 (“The commission may also modify any penalty imposed by the appointing authority”).
Such authority to review and amend the penalties of the many disparate appointing authorities subject to its jurisdiction inherently promotes the principle of uniformity and the “equitable treatment of similarly situated individuals.” Police Comm’r of Boston v. Civil Serv. Comm’n, 39 Mass. App. Ct. 594, 600 (1996). However, in promoting these principles, the commission cannot detach itself from the underlying purpose of the civil service system — “to guard against political considerations, favoritism, and bias in governmental employment decisions.” Falmouth v. Civil Serv. Comm’n, 61 Mass. App. Ct. 796, 800 (2004), quoting Cambridge v. Civil Serv. Comm’n, 43 Mass. App. Ct. 300, 304 (1997).
Just as in the previous litigation in Falmouth v. Civil Serv. Comm’n, 61 Mass. App. Ct. 796, 800 (2004), there was no finding here by the commission that the penalty was rooted in any consideration other than Deutschmann’s behavior on July 30, 1998, in concert with his prior record of misconduct.
We conclude that this difference in what is before us is too inconsequential to justify the reduction of the penalty imposed by the commission, especially where Deutschmann testified before the commission but not before the town. Although the commission found the victim and his friends not credible, and therefore the manner of violence effected by Deutschmann to be less egregious, the nature and gravamen of the violations remain
Moreover, in determining 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. Arria, supra at 334, the commission failed to account for the negative inference that the town administrator was permitted to draw from the refusal of Deutschmann to testify. We have long held that a party in a civil case seeking shelter under the privilege against self-incrimination of the Fifth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Constitution of Massachusetts may be the subject of a negative inference by a fact finder. Lentz v. Metropolitan Prop. & Cas. Ins. Co., 437 Mass. 23, 26 (2002), citing Kaye v. Newhall, 356 Mass. 300, 305-306 (1969), and Phillips v. Chase, 201 Mass. 444, 450 (1909). This is true where the opposing party, or in the present case, the town, through the testimony of
4. Conclusion. The judgment of the Superior Court is reversed. Under rule 2.4(a)(3) of the commission’s rules of practice and procedure then in effect, Deutschmann made a timely appeal from the town’s decision. The commission’s decision improperly substituted its judgment for that of the appointing authority in reducing Deutschmann’s suspension to sixty days from 180 days. Therefore, Deutschmann’s discipline is reinstated to the original 180-day suspension decided by the town of Falmouth.
So ordered.
The record shows that, on being ordered to submit a report concerning the events of July 30, 1998, Deutschmann chose to invoke his “constitutional protections under the US [sic] Constitution’s 5th Amendment and the Massachusetts Declaration of Rights Article 12.” Thus, the town administrator did not have the benefit of Deutschmann’s version of events at the time of decision.
We are troubled by the absence in the record of any evidence concerning the actual postmark of the December 17, 1998, letter. Although the Appeals Court was under the impression that the town conceded the issue of the letter’s postmark, see Falmouth v. Civil Serv. Comm’n, 64 Mass. App. Ct. 606, 608 n.4 (2005), a review of the argument below reveals that the town challenged the existence of a valid postmark in both its initial brief and its reply brief to that court. Nevertheless, a reasonable inference can be drawn that the letter was postmarked on or before December 21, 1998. The face of the letter bears the date December 17, 1998, and indicates that it was sent from the office of the defendant’s attorney in Needham. Contrary to the finding of the commission in its denial of the town’s motion to dismiss, the date stamp on the letter indicates that it was received in the Boston office of the commission on December 23, 1998, not December 22. If the letter was postmarked on December 22, which is the only feasible postmark that would render the appeal untimely, four full days, including an entire weekend, would have elapsed
The commission’s rules of practice and procedure in effect at the time of Deutschmann’s appeal have since been replaced by the standard adjudicatory rules of practice and procedure. See 801 Code Mass. Regs. § 1.01. The rules now in place provide for .essentially the same procedure for perfecting an appeal. 801 Code Mass. Regs. § 1.01 (4)(b). Although the commission may choose to adopt voluntarily the standard rules, as it has now done, it is not required to do so, because of its exclusion from the requirements of G. L. c. 30A, § 9, by the definition of “[ajgency” in G. L. c. 30A, § 1 (2). Such
General Laws c. 31, § 43, states: “If a person aggrieved by a decision of an appointing authority made pursuant to [§ 41] shall, within ten days after receiving written notice of such decision, appeal in writing to the commission, he shall be given a hearing . . . .”
Of the many cases cited by the town in support of its view, only Curley v. Lynn, 408 Mass. 39 (1990), is a review by this court of the commission’s interpretation of statutory language. There we held that the commission had acted outside the scope of its statutory authority by expressly allowing litigants to extend the deadline for appeal by filing a motion to rehear or reconsider. Id. at 41-42. No such express contradiction of the statute is created by rule 2.4 (a)(3). To conclude otherwise would be to agree with the town’s view that the phrase “appeal in writing” in G. L. c. 31, § 43, clearly requires receipt by the commission within the required time period. Because we determine the statutory language at issue here to be ambiguous, the Curley case is distinguishable.
In the sentence following the “appeal in writing” language, the statute states: “Said hearing shall be commenced in not less than three nor more than ten days after filing of such appeal. . . .” G. L. c. 31, § 43. The town claims that this section transforms the language of the previous sentence from “appeal in writing” to mean “file an appeal.” To support this argument, the town contends that the three-to-ten day statutory deadline for commencing a hearing could be compromised by equating filing with mailing because the appeal may not be received by the commission before that time has at least partly expired. According to the town, the Legislature could not have intended such a result. The town’s theory misunderstands the nature of perfecting an appeal, which need not be contemporaneous with filing. The commission may file the appeal on receipt, even after the ten days has expired, without offending the statute.
The commission’s rules of practice and procedure at issue here have an effective date of July 1, 1981. Section 8 of the Civil Service Commission Rules of Practice and Procedure, State Agency Practice (Oct. 1994). Prior to that, the commission’s rules stated: “All communications, including correspondence, motions and pleadings, shall be deemed to be filed with the Commission on the date on which they are actually received by the Commission at its office.” Rule 2.2 of the Civil Service Commission Rules of Practice and Procedure, 97 Mass. Reg. 59, 62 (March 9, 1978). In the years since its enactment, litigants before the commission have come to rely on the postmark rule as a standard of practice. Additionally, in 1981 the General Court was in the midst of revising G. L. c. 31, acting on the recommendations of a special commission established by Res. 1979, c. 10. The result was St. 1981, c. 767, an emergency act that was approved in its final form on January 4, 1982, and made into law the language that is contested in this case. “Significance in interpretation may be given to a consistent, long continued administrative application of an ambiguous statute . . . especially if the interpretation is contemporaneous with the enactment.” Cleary v. Cardullo’s Inc., 347 Mass. 337, 343 (1964), and cases cited. In light of our jurisprudence in this area, we cannot treat the timing of these revisions as coincidence. Moreover, we may presume that the Legislature has been aware of the commission’s adoption of the postmark rule during the last twenty-five years. See McCarty’s Case, 445 Mass. 361, 366 (2005). The absence of any legislative objection whatsoever during that time is telling.
The Legislature has provided for an administrative “appeal in writing” in the following circumstances: G. L. c. 7, § 25A (transfer of certain supplies and equipment between State agencies); G. L. c. 30, § 49 (classification of office or position of State employee); G. L. c. 30, § 53 (determination of certain provisions relating to conditions of employment of State employees); G. L. c. 31, § 43 (at issue here — disciplinary decisions of appointing authority affecting civil service employees); G. L. c. 35, § 52 (classification of office or position of certain county employees); G. L. c. 44, § 69 (penalties for certain checks returned due to insufficient funds); G. L. c. 61, § 2 (classification of land for forest production); G. L. c. Ill, § 5E (failure to grant or renew license to apply chemicals to control aquatic nuisances); G. L. c. Ill, § 51 (failure of building or fire inspector to issue inspection certificate needed for application or renewal of license to operate hospital, home for unwed mothers, or clinic); G. L. c. Ill, § 71 (same, concerning convalescent or nursing home, rest home, charitable home for aged, or intermediate care facility for mentally retarded); G. L. c. 128, § 25 (any proposed action by director of division of regulatory services of Department of Agricultural Resources); G. L. c. 132,
The town’s claim that this deferential standard of review is inapplicable here is unpersuasive. The town argues that, because the commission’s expertise does not extend to timeliness, filing, and jurisdiction, such deference is unwarranted. As we have reaffirmed quite recently, the standard to be observed by a reviewing judge is one of “due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it” (emphasis added). Brackett v. Civil Serv. Com’n, ante 233, 241-242 (2006), quoting Iodice v. Architectural Access Bd., 424 Mass. 370, 375-376 (1997). Whereas matters of timeliness, filing and jurisdiction may not be within the specialized knowledge of the commission, there can be little doubt of its experience as an adjudicatory body. The history of civil service in Massachusetts can be traced to just after the landmark Pendleton Act, passed by Congress in 1883. See generally Arnett v. Kennedy, 416 U.S. 134, 149 n.17 (1974). See also St. 1884, c. 320; Opinion of the Justices, 138 Mass. 601 (1885). Further, the statute that today authorizes the Civil Service Commission to hold adjudicatory proceedings was enacted in 1978, see St. 1978, c. 393, § 11, and the commission’s role as an adjudicatory body predates that. See Caulfield v. Fire Comm’r of Brookline, 336 Mass. 569, 571-572 (1958). The commission’s long tenure in this role very well may have augured in favor of the postmark rule, especially given the efficiencies it
The record before the commission indicates that Deutschmann was disciplined on no fewer than twenty-four occasions in the thirteen years prior to the Brenowitz incident. The infractions consisted of a range of violations from insubordination to failure to attend training. Prior to this case, Deutschmann had received separate three-, five-, and fourteen-day suspensions. The town cited Deutschmann’s prior record of discipline in reaching its decision to suspend him for 180 days.
While it is true that the commission performs a de nova fact-finding function, there is little reason for the commission to exclude the town’s findings as the commission did in this case. While the commission must develop its own view of the facts, a review of the town’s findings no doubt would assist the commission in determining 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. Arria, 16 Mass. App. Ct. 331, 334 (1983).
In addition to finding only that Deutschmann shoved Brenowitz, rather than grabbing him by the neck, the commission also concluded that Deutschmann’s actions did not violate Falmouth’s policy on arrest and transportation procedure. However, we do not consider this significant in comparison with the other misconduct found.
Indeed, the portion of the town’s decision that references the police department’s rules and regulations rests its conclusion that Deutschmann violated police policy on the use of force not on the degree of violence employed, but rather on the absence of justification, finding that “[n]o imminent need to preserve the peace . . . was present, no resistance to lawful arrest . . . was present, no self-defence or defence of another . . . was present.”