NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case.

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT 24-P-34 BRIAN SWEET vs. MASSACHUSETTS CIVIL SERVICE COMMISSION & another.1 MEMORANDUM AND ORDER PURSUANT TO RULE 23.0 The plaintiff appeals from a judgment of the Superior Court upholding a 2017 amended decision (2017 decision) of the Civil Service Commission (commission) to rescind the relief granted in an earlier 2013 decision. The commission's 2013 decision had modified the penalty imposed by the Massachusetts Department of State Police (MSP) against the plaintiff from a dishonorable discharge to a sixty-day suspension. The 2017 decision rescinded the 2013 decision and dismissed the plaintiff's appeal nunc pro tunc, the effect of which was to reimpose the original penalty of discharge imposed by the MSP. On appeal, the plaintiff claims that the judge erred in denying his motion for

Discussion. 1. The reopening of the 2013 decision. The plaintiff claims the commission abused its discretion in reopening its 2013 decision.3 Specifically, the plaintiff, citing Soe v. Sex Offender Registry Bd., 466 Mass. 381, 396 (2013), contends that the commission failed to consider whether the 2013 decision "substantially relied on [evidence] . . .

subsequently demonstrated to be false, inaccurate, or utterly unreliable." We disagree.

"An administrative agency, in the absence of statutory limitations, generally has the inherent authority to reconsider a decision or reopen a proceeding to prevent or mitigate a miscarriage of justice." Soe, 466 Mass. at 395. Contrary to the plaintiff's interpretation of Soe, the Supreme Judicial Court has clarified that, "[i]n Soe, we noted that a miscarriage of justice may occur for many reasons, including when the board substantially relies on evidence that was later demonstrated to be false." Doe, Sex Offender Registry Bd. No. 209081 v. Sex Offender Registry Bd., 478 Mass. 454, 457 n.7 (2017). In other words, an agency's reliance on false, inaccurate, or utterly unreliable information is sufficient to justify the reopening of a closed decision, but is not necessary. See id. While an agency's inherent authority to reopen closed proceedings "must be sparingly used," id. at 457-458, quoting Soe, supra at 395, and "the mere availability of additional evidence is insufficient for its use" (citation and quotation omitted), Soe, supra at 395, it may be used "in compelling situations as justice may require." Covell v. Department of Social Servs., 42 Mass. App. Ct. 427, 433 (1997).

An agency's exercise of this authority is "reviewable only for an abuse of discretion."4 Soe, 466 Mass. at 396. "When reviewing an agency's decision for abuse of discretion, we look to see whether the decision was reasonable." Doe, Sex Offender Registry Bd. No. 209081, 478 Mass. at 457.

At the time of the 2013 decision, the administrative record included a letter dated October 28, 2010, from Colonel McGovern of the MSP to the plaintiff, informing the plaintiff of the Colonel's decision, pursuant to G. L. c. 140, § 131 (f), to revoke the plaintiff's firearms license (LTC). However, the record did not include information regarding the amount of time that the plaintiff would remain ineligible to obtain an LTC (e.g., the expiration date of the revoked LTC). The commission therefore did not merely apply "fresh judgment or an altered substantive policy to an otherwise closed proceeding." Aronson v. Brookline Rent Control Bd., 19 Mass. App. Ct. 700, 704-705 (1985). In light of the greater-than-three-year period in which the plaintiff became ineligible to obtain an LTC, the holding of

which is required of State troopers under the Department of State Police Rules & Regulations, and the return to service requirements following a separation from service exceeding three years, the commission acted reasonably, and did not abuse its discretion, in determining that the 2013 decision's apparent contravention of the aforementioned rules amounted to a compelling circumstance that justified its reopening. See Covell, 42 Mass. App. Ct. at 433.

2. Just cause for disciplinary action. The plaintiff next claims that the commission's 2017 decision was erroneous because G. L. c. 31, § 43, as interpreted in Brookline v. Alston, 487 Mass. 278, 306 (2021), mandates reversal of the MSP's disciplinary action against the plaintiff in the absence of a finding, within the 2013 decision, of just cause for the plaintiff's termination.5 We disagree.

Contrary to the plaintiff's contention, and as the Superior Court judge correctly reasoned, § 43 does not require a finding of just cause for the specific penalty imposed by the appointing authority, but rather for disciplinary action to be taken. See Police Comm'r of Boston v. Civil Serv. Comm'n, 39 Mass. App. Ct. 594, 599 (1995). The commission, in its 2013 decision, did not find that just cause was lacking for disciplinary action; it merely exercised its discretionary authority under § 43 to modify the penalty imposed.6 We agree with the judge's conclusion that the 2017 decision to rescind the modified penalty did not result in a violation of § 43.

3. Due process. Finally, the plaintiff claims that the commission's 2017 decision deprived him of his right to due process. Specifically, the plaintiff contends (1) that he had a "protected property right in continued public employment absent termination for just cause," and (2) because the 2017 order to

show cause did not "mention [the plaintiff's] disciplinary, legal, or other history as a basis on which the [c]omission might rescind the earlier-granted relief," the plaintiff was not given proper notice of the agency's action, nor an opportunity to be heard on the above issues.

The factual premise underlying the plaintiff's argument is inaccurate. Contrary to the plaintiff's claim, the 2017 decision did not rest on this purported "'second' real reason for reopening the case." In reaching its 2017 decision, the commission reasoned that the plaintiff's "[LTC] ineligibility coupled with his involuntary separation from employment rendered [the plaintiff] incapable of performing the essential functions of his former State Trooper position for a length of time (exceeding three years) that precludes unfettered reinstatement." As the 2017 decision was based solely on the duration of the plaintiff's ineligibility to perform an essential job function, and not on his "disciplinary, legal, or other history,"7 the absence of information regarding the latter in the 2017 order to show cause has no bearing on such order's

fulfillment of the commission's procedural due process obligations.

Judgment affirmed.

By the Court (Meade, Desmond & D'Angelo, JJ.8),

Clerk

Entered: March 7, 2025.