City of Beverly v. Civil Service Commission
City of Beverly v. Civil Service Commission
Opinion of the Court
Having taken the relevant civil service examination, the defendant Sean Bell applied for a position as a reserve police officer with the city of Beverly (city).
Background.
The Beverly police department had multiple openings for reserve police officers in 2006, and the police chief assigned Captain John DiVincenzo to conduct background checks on the eligible candidates, including Bell. Hospital officials informed Captain DiVincenzo why Bell had been fired. When Captain DiVincenzo confronted Bell with this information in August of 2006, Bell denied having accessed the voice mails. Following this meeting, Captain DiVincenzo met with hospital officials who explained how they came to the conclusion that Bell was the one who had improperly accessed the voice mail accounts. They supplied Captain DiVincenzo with the surveillance photographs and a “call search report” that documented the voice mail accounts being accessed and the telephone extensions used to access those accounts. This report included print-outs generated by the hospital’s computerized “voice mail server.” Because he lacked a technical understanding of voice mail systems, Captain DiVincenzo passed the hospital’s information along to Russell Fisk, an information technology specialist who worked for the city. Fisk prepared a report that concluded:
“The logs do illustrate one extension calling and accessing multiple voice mail boxes, many in the Human Resources department. The call times in the voice mail log do closely match the photographs of the security guard. [Beverly Hospital] had indicated that the telephone extension used to access the voice mail is the one shown in the photographs.”
Fisk’s report also noted that two of the thirteen calls in question were made from extensions outside the system and that the hospital “records do not conclusively prove that these calls were indeed by [Bell]” (emphasis added).
Armed with this detailed information, Captain DiVincenzo
At an evidentiary hearing held on February 7, 2008, the commission heard testimony from five witnesses: Bell, Captain DiVincenzo, the police chief, Henry McLaughlin (security manager at the hospital), and Greg Buckless (information technology supervisor at the hospital). Captain DiVincenzo explained the process he used, as set forth above. Although a transcript of his testimony is not before us,
Buckless, the information technology supervisor at the hospital, acknowledged “that the extensions allegedly used to improperly access voicemails could also be dialed from any location in the [h]ospital, as the extensions are not tied to a specific phone.” Although the commission in its brief portrays this as a key concession that “essentially guts the case against Bell,” the commission does not actually explain why that is.
In his own testimony, Bell denied the misconduct and stated that he could not have gained access to the voice mail accounts because he lacked the necessary knowledge to do so (e.g., the passwords necessary to access them). He also testified about his union-related activities, which he again offered as a possible explanation for the hospital having targeted him.
A three-person majority of the commission concluded that the city “failed to prove that [Bell] illegally accessed voicemails of employees while employed at the [h]ospital, the reason given for his bypass, and accordingly did not support this reason by the necessary preponderance of the evidence.” The commission
Discussion. We begin by addressing the respective roles of the appointing authority and the commission, and the appropriate standard of review to be employed by courts sitting in review of their decisions. All parties agree that the city could bypass Bell if it had a “reasonable justification” to do so. See Brackett v. Civil Serv. Commn., 447 Mass. 233, 241 (2006). Under established case law, the city bore the burden of establishing by a preponderance of the evidence that it had such a reason. Ibid., citing Massachusetts Assn. of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 260 (2001), and Cambridge v. Civil Serv. Commn., 43 Mass. App. Ct. 300, 303 (1997). This means that it needed to demonstrate that its decision was “done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind, guided by common sense and by correct rules of law.” Ibid., quoting from Selectmen of Wakefield v. Judge of First Dist. Ct. of E. Middlesex, 262 Mass. 477, 482 (1928).
In its review, the commission is to find the facts afresh, and in doing so, the commission is not limited to examining the evidence that was before the appointing authority. Leominster v. Stratton, 58 Mass. App. Ct. 726, 727 (2003). “The commission’s task, however, is not to be accomplished on a wholly blank slate.” Falmouth v. Civil Serv. Commn., 447 Mass. 814, 823 (2006). Its role is to “decidefj 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.’ ” Id. at 824, quoting from Watertown v. Arria, 16 Mass. App. Ct. 331, 334 (1983). The commission’s role, while important, is relatively narrow in scope: reviewing the legitimacy and reasonableness of the appointing authority’s actions. See id. at 824-826. Although it
A court reviewing a decision made by the commission is “bound to accept the findings of fact of the commission’s hearing officer, if supported by substantial evidence.” Leominster v. Stratton, 58 Mass. App. Ct. at 728. All parties have accepted the commission’s factual findings as far as they go, and we accept them as well.
The parties agree that if Bell in fact accessed the voice mail accounts in question, that would be a sufficient reason for the city to bypass him for a position as a police officer. They disagree on what the city needed to show given that there is a factual contest whether Bell ever engaged in the misconduct. The dispute is thus not whether the city relied on improper considerations, but whether the city put forward a sufficient quantum of evidence to substantiate its legitimate concerns.
In sum, having uncovered that Bell was fired for allegedly engaging in serious misconduct, the city conducted an impartial and reasonably thorough review that confirmed that there appeared to be a credible basis for the allegations. The city therefore was able to show that it had legitimate doubts about Bell’s suitability for such a sensitive position and, in our view, demonstrated that it had a “reasonable justification” for bypassing Bell.
Moreover, we believe that the commission’s position that the city must hire Bell unless it can prove the truth of the third-party allegations would force the city to bear undue risks. In this respect, Cambridge v. Civil Serv. Commn., 43 Mass. App. Ct. at 301, is instructive. There, an applicant for a police position had long ago engaged in certain misconduct. Recognizing that hiring the applicant posed a risk, we concluded that “[wjhether to take such a risk is, however, for the appointing authority to decide.” Id. at 305. Although the context presented here obviously differs in that the parties dispute whether the past misconduct ever occurred, the risks presented are similar. After completing its own independent review, the city decided that it was unwilling to bear
We discern no conflict between our reasoning here and that of Leominster v. Stratton, 58 Mass. App. Ct. at 732-733. That case involved a city’s termination of a tenured police officer who had been accused of sexually abusing his daughter and stepdaughter.
The context presented in Leominster v. Stratton, supra at 726, was significantly different. That case involved the discipline of a tenured employee, not an initial hiring decision. Ibid. Therefore, the appointing authority in that case had to demonstrate that it had acted with “just cause” to fire its employee (see G. L. c. 41, § 43), not merely that there was “reasonable justification” to bypass a job candidate. We think that the standards are materially different. Simply put, a municipality should be able to enjoy more freedom in deciding whether to appoint someone as a new police officer than in disciplining an existing tenured one.
Further, it bears noting that in Leominster v. Stratton, the commission found — after two rounds of evidentiary hearings — that the allegations of misconduct were demonstrably false, having been fabricated by the police officer’s former wife. Id. at 730. By contrast, although a majority of commissioners here
In sum, we agree with the judge below that the city demonstrated a reasonable justification to bypass Bell and that the commission improperly substituted its judgment for that of the city in ordering that he be hired.
Judgment affirmed
We refer to the city and its police department collectively as the city, except where necessary for clarity.
We acknowledge the amicus brief filed by the Massachusetts Municipal Association in support of the city.
The factual statements below are taken largely from the commission’s factual findings, which the parties acknowledged at oral argument they are not challenging. We have supplemented those findings by reference to the written exhibits that were before the commission. Those exhibits appear in the administrative record, which we obtained from the Superior Court on our own initiative.
Read in context, Fisk’s reference to “these calls” plainly refers to the two calls that were made from outside extensions. It appears that the commission
Apparently neither party requested that the transcript of the evidentiary hearing be made part of the administrative record that was filed in the Superior Court. See Superior Court Standing Order 1-96(2).
Notwithstanding Bell’s concession on this point, the commission went out of its way to note that “no Appointing Authority witness ever testified that the [surveillance photographs] depicted [Bell].”
According to the commission’s findings, Captain DiVincenzo “testified that the camera times in the photographs are sometimes different from the alleged improper voicemail access times noted in the call search report.” There is no discussion in the commission’s decision of whether this testimony is at variance with the city’s information technology specialist’s report, which concluded that the call times “closely match[ed]” those of the photographs.
At least as recounted in the commission’s findings, Buckless’s testimony on this point appears to be of uncertain import. Whether the relevant extensions (be they the extensions of the telephone that Bell allegedly used or the extension of the voice mail accounts that were accessed) could have been “dialed” from any telephone extension in the hospital never appears to have been in dispute. Instead, the key factual question before the commission was whether one could use a telephone elsewhere in the hospital to dial the extension that Bell allegedly used and — once this had been done — then access the voice mail accounts of others, all in a manner such that the voice mail server would record the intermediary extension as the originating extension of the call, instead of the extension of the telephone that the caller was actually using. If so, then the evidentiary bite of the hospital’s “call search report” would indeed have been diminished. It is far from clear that Buckless’s testimony established this to be the case (as opposed to merely acknowledging facts that were not in dispute).
As demonstrated infra, this case well illustrates the difficulties inherent in sorting out what is fact finding (the province of the commission) and what is the exercise of judgment with regard to the facts (the province of the appointing authority).
The position of a police officer is one “of special public trust.” Police Commr. of Boston v. Civil Serv. Commn., 22 Mass. App. Ct. 364, 372 (1986). “Police officers must comport themselves in accordance with the laws that they are sworn to enforce and behave in a manner that brings honor and respect for rather than public distrust of law enforcement personnel.” Id. at 371. See Boston v. Boston Police Patrolmen’s Assn., 443 Mass. 813, 823 (2005).
Moreover, neither party has supplied a transcript of the testimony that the commission heard, and without that, we would be unable to evaluate any claim that the findings are unsupported by substantial evidence.
Neither Bell nor the commission has ever claimed that the city’s stated
The commission initially declined to submit a brief. In light of the substantial deference owed to an agency interpretation of a statute it administers, see Provencal v. Commonwealth Health Ins. Connector Authy., 456 Mass. 506, 514 (2010), we invited the commission to submit a brief, and it accepted that invitation. The commission’s brief principally focuses on the facts, not on how the underlying statute should be interpreted. The commission does appear to take the position that the city faced the specific burden of proving the truth of the third-party allegations of misconduct. However, it does little to attempt to support that position based on the case law, the language of the statute, or other considerations. Moreover, elsewhere in its brief, the commission appears to concede that there may well be some situations where an appointing authority would be justified in bypassing a candidate based on prior misconduct without having to prove to the commission that the applicant in fact engaged in the misconduct, e.g., “where a candidate has been convicted of a crime or found responsible for some other type of misconduct by a court or governmental body.” In any event, to the extent that the commission interprets an appointing authority’s over-all burden to prove a “reasonable justification” as encompassing a specific burden of proving the truth of third-party allegations of misconduct, we consider that an unreasonable interpretation to which deference is not due.
Although we did not expressly note that the police officer in Leominster v. Stratton had obtained tenure, that status is evident from the fact that his termination proceedings were conducted under the provisions applicable to tenured employees. 58 Mass. App. Ct. at 726-727, citing G. L. c. 31, §§ 41, 43.
Nor is this a case where the individual who allegedly engaged in misconduct successfully confronted the allegations in separate proceedings in which the truth of the allegations was directly at issue. Compare Lynn v. Thompson, 435 Mass. 54, 55, 58 (2001) (upholding arbitration order reinstating police officer who had been discharged for allegedly using excessive force, where arbitrator rested in part on the officer having been “exonerated” in separate civil proceedings). As noted above, there is no evidence that Bell ever sought to challenge the hospital’s summary termination of him.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.