Speaker: SJC-12855 Denise Darby,
the Massachusetts Civil Service Commission.
-: Hey Mr Halpin.
Halpin: Good morning justices,
again, my apologies and May it please
the court, Michael Halpin,
special assistant attorney general representing
the department of state police.
The department's appeal in this matter concerns
the scope of the civil service commission's jurisdiction
to review matters adjudicated by state police trial boards.
As I'm certain, the court is aware,
both before and after 2002,
uniform members of the department
have had the right to appeal matters adjudicated
by a state police trial board.
Initially prior to 2002 those matters were reviewed
by the District Court.
Following a 2002 amendment, a review was sent over
to the civil service commission.
What's that issue here is,
the department's belief that, the superior court earn
when it found that the civil service commissions
taking jurisdiction over the loss of accrued time,
which is not a sanction enumerated within sections 41 to 45
of chapter 31, was an error.
As indicated, the amendment in 2002, led to a change,
that change was accompanied by the removal
of the word punishment twice from the statute,
both in the matters that were appealed,
and in the review.
Following the amendment,
the language has changed to read--
-: We'll get into the language in a moment, Mr Halpin.
Lemme ask you a question of legislative intent.
As we saw it through these statutes,
as you indicated in 2000 prior to 2002,
a uniform member of the state police was able
to go to the District Court, for review.
Wouldn't you say that the new legislation,
gave uniform members of state police additional protections
in that they get to go to the commission
and then have judicial review under chapter 38.
So, isn't that inconsistent with your argument
that the legislature actually decrease the authority
of rebuilding review.
Halpin: I would contend, no, Your Honor.
The change is just that, a change.
I think one could quarrel over whether
the change was an increase in protections,
or a loss in protections.
But the reality is, all trial board matters,
which can include matters that are not adjudicated
by the civil service commission,
were previously entertained by the District Court.
I would contend that one of the legislative intent
might have been to eliminate that burden
because what you had was a lot of minor disciplinary matters
being adjudicated in a District Court.
-: Lemme ask you about the scope of that,
and forgive me for not knowing what punishments
are mended out by the trial board.
So suppose there is a complaint,
and a there's a letter of reprimand in a personnel file,
would that be something the trial board would do?
Halpin: Yes, the trial board can recommend
any level of discipline.
It is in fact only that a recommendation,
the Colonel actually imposes.
-: Okay, so if the trial board says
someone's gonna be written up,
prior to 2002, that could go to the District Court.
Halpin: Correct, and since that time,
since now, the matters are reviewed
by the civil service commission,
the commission itself has recognized
a limitation upon its jurisdiction
and not entertained those matters because they
are not encompassed by section 41 to 45.
But in this particular case,
they have taken jurisdiction over a matter
that is not enumerated in that--
-: What about as judge Aldman found
the functional equivalent argument
that this is when you dock someone two days vacation pay,
you really effectively taking money away from them.
Halpin: Well, you are taking time away from them,
but the sanctions are quite different.
As indicated in the brief,
the factual differences between a suspension
and the loss of recruit time are significant and many.
Suspension actually results in a temporary
separation from employment.
It results in the loss of seniority,
results in the loss of creditable service
towards retirement.
Members who are suspended are no longer deemed
to be members of the parliament,
they cannot utilize police powers.
They are not eligible for overtime, or details
or any other service,
whereas the loss of accrued time,
results in none of those consequences.
And in fact, members in addition to being subject
to losing accrued time, are only allowed to carry over
certain amounts of time anyway.
So they would forfeit sometimes time at the end of the year,
regardless of whether they've been punished or not.
So the penalty is actually quite minor and not severe
and not at all the equivalent of a suspension.
And also, both the commission
and at least one prior court finding
the loss of accrued time to be a functional equivalent
flies directly in the face of showing deference
to the department's interpretation of its own rules.
The department clearly does not view them as equivalence
or interchangeable punishments.
They are alternative and quite different penalties
that are emitted out to employees.
So, in accordance with consistent deference being given
to the agency that both promulgates
and enforces its regulations,
the department would contend that deferent here
should be shown to the department's interpretation,
not the commissions, nor any other prior superior court
addressing the matter.
-: In your view, what's the impact
of the error enclosing the proceedings.
Halpin: So, whatever error occurred,
I think we could quarrel over whether the commission could
have done something different.
-: You can see there was error.
Halpin: No, I would argue that the commission
has to have some authority to balance the harms
that would be caused not only to
a person requesting the public hearing pursuant
to the statute, but to those impacted
by the disclosure of confidential information,
such as Cory, during those proceedings.
The commission has routinely sequestered witnesses
and taken other actions, such as impoundment of material,
et cetera, to prevent those harms from occurring.
And I would say that the commission must have that authority
to do that in relation to a public hearing,
-: But you would concede a better decision
would have been not to have a blanket order, correct?
Halpin: I would contend that you could
have used less restrictive means
to achieve the same result.
However, I believe that it is clear in the law,
all of the relevant statutes, chapter 31, section 42,
chapter 31, sections 41 and 43 all require prejudice
to occur when there's an error of law
or a procedure that is unlawful.
Here, authority has done nothing to demonstrate
that there's been any prejudice
as a result of whatever harm occurred as a result
of the commission's decision to close
the proceedings in their entirety.
Which she must do in order to reverse that decision.
But again, it's the department's main contention
that, a jurisdiction is wanting to begin with.
-: Justice Cypher you heard (murmurs).
-: So, attorney Halpin,
you're saying that the commission lacked jurisdiction
to hear the appeal because the penalty wasn't contemplated?
Halpin: Correct the amendment--
-: In that case, if that's true,
then would there be no method of reviewing
the trial board if they chose a punishment
or a discipline that is,
or a sanction that's not specified?
Halpin: No, there is another Avenue of relief
for any person aggrieved by department order,
which is mass general law chapter 22C, section 43,
any member or person agreed by a department order,
has the opportunity to appeal that decision
or that order to the Colonel,
and they (murmur)a further view to the superior court
as well.
Cypher: Okay.
Halpin: So, the fact that the legislature
would likely have been aware of the existence
of that statute, in my view lends credibility
to the argument that it in fact,
did intend to give uniform members
which are contrary to what has been suggested
by the commission in its brief,
does not just involve unionized workforce.
Uniform members are defined under the statute
from the lowest ranked trooper, to the Colonel.
Every member appointed to the department is a uniform member
and is subject to discipline under 22C 13.
So, this was not a unionized or union specific
piece of legislation.
This is a department wide, application
of a disciplinary process,
which is also authorized under chapter 22C,
sections three and 10.
So, the department really believes strongly
that the legislature was aware of the other avenues
of relief, probably was likely aware of the fact
that minor disciplinary matters were clogging up
District Court dockets,
and did in fact intend to give exactly
what it already gave to tenured civil servants
and nothing more and nothing less,
which is a writer review of certain disciplinary matters
under chapter 31, section 41.
-: But essentially counsel, the trial board
can basically control the Avenue of appeal
by controlling the decision it makes
with regard to discipline.
Halpin: Well, again the trial board makes
a recommendation of the Colonel with
ultimately be the Colonels determination.
Cypher: Right? But.
Halpin: But if the sanction itself
is not one implicated by section 41 to 45,
you could I guess, place that on the board,
but it's just a matter of fact that
it's not a sanction governed and contemplated
by those sections.
And the only writer review would be,
to contest the order under section 43 of chapter 22C.
Cypher: Thank you.
-: I ask, so what is meant by the regulations that say
that "Losing accrued time can be the equivalent of,
or used as a substitute for suspension."
Halpin: So, the actual phrase used justice Budd
I'm sorry is an alternative.
So, that comes from article five
of the department's rules and regulations
and there are attendant guidelines,
which are intended to give guidance
to the actual trial boards
and how they determine punishment.
And what it is is a suggestion that,
you may in lieu our suspensions
as an alternative punishment
or for the loss of accrued time.
And it again is posed to those members as guidance
and then it is posed to them as an alternative,
not a substitute or the equivalent to the penalty.
And that's really the bone of contention here
is that both the commission and at least one prior
or now two prior courts have said that, well,
these appear to be interchangeable or the equivalent.
And again, both in fact, and in their plain language,
they are quite different penalties.
-: Thank you.
-: Thank you Mr. Halpin, Mr Kittredge.
-: Thank you.
Good morning.
May it please the court,
my name is Joseph Kittredge,
counsel for the appellant, Denise Darby
Your Honors, the right to a public hearing
cannot be dictated by the nature of that hearing.
We request that this court reverse the lower courts
decision to the extent that it refused to permit
Denise Darby to be had the case remanded
to the civil service, to be afforded her right
to a public hearing.
The failure to afford her that public hearing
is a structural error.
And as a result, the only appropriate remedy
would be remand.
In addition to that--
-: You appropriately picked up on a structural error cases,
the Cory line in the criminal side,
and whether or not, we're gonna call this
a find equivalency, the different issue.
And, usually in those criminal cases,
there's an affidavit by a family member or someone else
that says, "I wanted to come into court,
and I was kicked out of parliament."
That's the typical criminal case.
Here, your client was allowed to have her husband present.
So, not everyone's kicked out
the person that was there to support her
was actually allowed to attend.
What impact does that have on our analysis?
-: Well, Your Honor, I guess at best
that would be considered a partial closure
for a period of time,
but the reality what happened
is the commissioner prevented anybody else
from being in there.
He told other members who people that
were in the hearing at that point in time to leave
and only permitted the husband to stay,
even unilateral, he made that decision on his own
without even asking the, or I guess the parliament
at that point in time who she may have wanted
to remain in during that hear.
As a result, I suggest that in and out of itself,
doesn't remedy the fact that she has this statutory, right.
This right is, I suggest that could be very unique.
I'm not sure if there's anywhere else
in the state of Massachusetts.
Is there a provision, other than, 31, 41, 31, 43,
where there's an articulated right to a public hear.
As the court knows, even article 12
of the declaration of rights,
doesn't even afford a criminal defendant,
the right to a public hear
and that's exercise here in Massachusetts
within the sixth amendment.
So, I suggest that the fact that the legislature require
that upon written notice, a written request
that a public hearing be given,
that she'd be accorded that,
and this is underscored by,
I believe this court's decision in our language
in the town of Fallates versus civil service.
Where you indicated that the underlying purpose
of the civil service commission,
is to guide against political considerations, favoritism,
advising government on employment decisions.
And I suggest to this court that,
the rationale reasons that are for a public hearing,
are no different, whether it's an administrative hearing
or criminal hear.
Well, obviously a criminal defendant
has some significant issue interest
in having a public hearing.
There's issues with regards, the public,
the press as right.
It's just in general public having a right
to witness, observe the transparency
of the whole process, and the review or observations
of the people who control the process.
-: Do you believe that the commission had the right
to at least close that part of the hearing
that dealt with the Cory information
of the particular witnesses?
-: Well Your Honor, I think we'll have
to be very circumspect to the extent that
if there was such a concern from the commission,
we could have utilized a number of things.
We could have possibly had the people
identify themselves and swear under oath
in a closed courtroom,
and then just testify as to what was occurring,
without being identified.
If there was such a concern, I think,
as was noted by the commission in his decision,
that utilize the initials of the people
without disclosing it.
But I suggest that even in the downing taste,
he talked about how the fact that the Cory
in and of itself isn't enough to supersede
or trump as a commission use
the right tool to public hear.
Yes.
-: Justice Kafker.
-: Can I switch to the substantive issue first...
are you done Justice Gaziano?
-: I am.
-: So the substantive equivalency issue,
a suspension is equivalent..
I mean, loss of accrued time is equivalent
to a suspension, right?
My problem is, section 41 to 45
talks about a suspension up to five days, correct?
-: Yes, Your Honor.
-: So, here we have a loss of accrual of only two days.
So it seems like it doesn't even if a suspension
is the equivalent of a loss of accrued time,
we don't have a loss of five days of accrued time.
So doesn't this not meet the statutory threshold
or a serious enough discipline to invoke
the jurisdiction of civil service commission?
-: Your Honor, I believe that the right
to go to civil service point at 22C section 13,
and it says that any punishment that gives them the right
to go to civil service.
-: I thought it cross references sections 41 through 45
with relevant statute.
-: Yes, Your Honor,
but they haven't been consistent with
what the preexisting statute was.
It's just been with the...
if you will increase of the review of the whole process
at the prior level,
before the change being switched over
to the civil service,
any type of discipline was permitted to go
to the District Court.
And this was---
-: You didn't just transfer the jurisdiction.
They included substantive language that referenced
41 through 45, and 41 through 45
doesn't allow anything to go.
It only allows things that are more significant.
And I'm just wondering why no one %argues this.
'Cause it seems to me...
I get the point that a suspension
and a loss of accrued time may be
the equivalent of the suspension,
but, the only suspensions that 41 through 45 allow,
are those that have a five day suspension
and maybe I'm misreading it.
But I just would like someone to point out
in the statutory language, why I'm wrong.
-: Your Honor, I'd have to look to the statute,
I'm not sure exactly why that's the case.
I apologize.
-: Okay.
I'll ask the same question to Mr. Quinan
when he speaks too.
-: Justice Lowy.
-: Yes, so, your possession and it said that,
the commission was wrong
and there was a lack of substantial evidence
and there was no support for the discipline.
One of the things you rely on I believe
is that the commission didn't seem to address
the alleged perjury of FP and NR,
when finding them credible.
But, my question is couldn't the hearing board,
or for that matter of the commission,
look at the situation, take the overall testimony
and perhaps find that a particular witness
lacked credibility in one area.
But, overall credibility was found,
which would have supported substantial evidence
for the discipline incurred.
-: Yes, Your Honor.
I think that the commission could do that,
but there was no reference to even taking a consideration,
some of the other testimony or even any notation
within its findings with regard to the other
evidence that was presented during that hear.
Therefore I suggested it wasn't a given proper weight
when the evaluation is being done.
-: And I presume you would include within that whether
or not your client (murmur) would employ about it,
couldn't return to work.
-: Yes, Your Honor.
-: You have a few remaining minutes.
-: Yes. In addition to the substantive error,
a structural error, I suggest that it was incorrect
and improper for this commission in the lower court
to rely or suggest that the (murmur)
my client Denise Darby was required
to show prejudice at the time that the commission
refused to give her her public hear.
The issue of prejudice,
is only something for the reviewing court.
It's not a precondition under section 41 or 43
to establish before she's given her right to a public hear.
And therefore, I suggest wasn't correct for the court
to rely in part on the fact that she didn't
establish prejudice at the time
that she was denied that hear.
If there are no other questions,
I request that this court remand the matter
for a new hearing or in the alternative finding,
saying my client that there was no substantive evidence
to support to find him guilt.
Thank you.
-: Thank you counsel, Sir Quin.
-: Good morning, this is attorney general Rob Quinan
for the civil service commission.
This case presents, two important questions of law.
First, what did the legislature intend in 2002,
when it transferred from the District Court,
to the civil service commission jurisdiction
to review disciplinary actions taken at the end
of a trooper misconduct trial.
A, was the commission to hear appeals from
any adverse final decision of a trial board implemented
by the crown as the District Court historically had done?
Or B, did the legislature's vague reference
and the amended statutory text to five broad sections
of the civil service law,
somehow construct the types of disciplinary appeals
the commission could entertain.
-: Can I stop you with your first point
about vague references?
-: Yes.
-: Under your view we have to essentially ignore
the references section 41.
-: No, I think it's important to look very carefully
at exactly what that sentence says.
The second sentence of section 13 of chapter 22C states
and I quote, "Any person aggrieved by the finding of such
a trial board, may appeal the decision
of the trial board, under sections 41 to 45
inclusive of chapter 31."
Take note of the word under,
the legislature did not say as permitted by
if they had said as permitted by sections 41 to 45,
then the department's argument would hold water,
but it does not.
-: So, In your view if the trial board
and ultimately the Colonel,
approved of a letter of reprimand going into someone's file,
could that go before the commission?
-: Well, certainly any consequential disciplinary action
that came as the result of a trial board
could be appealed to the civil service commission, so--
-: Where do you get the consequential?
Because if it's any, any means anything.
And that's what the first part of this of the statute says.
And then the limitive language,
so argued by the state police is in 41.
So, under your view, it's all or nothing, correct?
-: Well, the language of the statute does say
"If you're aggrieved by the finding, you may appeal."
-: So if I get a letter in my file
and I'm not happy about it,
cause I was rude to a motorist,
under your view, I could go to the commission.
-: That's right, that's correct.
-: I think justice Kafker has a follow up on that.
Quinan: Sure.
-: I'm having trouble with this.
If you're not a police officer and you're going
to the civil service commission,
don't you need to meet that like
if it were a suspension that it has to be five days
or were four days, you wouldn't be able
to appeal that to the civil service commission.
-: No, you would be able to appeal under section 42,
not section 41.
-: 42.
-: The only difference for a suspension of less
than five days is that it need not be preceded
by a local appointing authority hearing,
but you still have the right to appeal that
to the civil service commission.
And that does happen all the time.
-: So you can appeal even as justice Gaziana says,
any little thing, you get a reprimand,
they tell you to move your desk over,
you can appeal that to the civil service commission.
-: Well, the first sentence of section 13 of chapter 22C,
says that a uniform member of the state police
who is tenured, and against whom disciplinary charges
have been preferred, and has been tried by a trial board.
So, it's unlikely that if you've been ordered
to move your desk, that that's gonna result in
disciplinary charges, heard by a trial board.
So those aren't cases that would get
to the civil service commission.
-: But in the rest of the civil service,
in your view, that all, anything like that
can be challenged, and I mean--
-: We know from a 1993 decision of this course,
the Johnson vs Superintendent mass state police,
that the Boston Municipal Court before 2002,
had the statutory right to review the forfeiture,
by a tenured state trooper, of a few days of vacation time,
just as here, after being charged with violations
of state police rules and regulations.
So, all we're asking is that, that same right be respected.
-: I'm just trying to understand the way
the civil service commission laws work in general
'cause this cross-reference to me...
So again, if I'm a state employee,
and I get any kind of letter of discipline
or anything like that, I'm a tenured state employee
not that a lot of the state employees are tenured anymore,
but, they get the right to challenge that
the civil service commission,
a letter of reprimand or anything like that.
-: If they're brought up on disciplinary charges,
and they're tried by a trial board,
and there is an adverse finding by the trial board--
-: Which keeps (murmur) to the police
but, the police cross-referenced...
To me, I'm not as convinced as you are
that the cross-reference to 41 and 45
is just procedural as opposed to substantive.
And I'm trying to understand if all employees
in the state or tenured get those rights,
then I get it.
But if their limitations are mere rights,
then I'm wondering whether the police
have the same limitations.
-: Well, they certainly did not, prior to 2002
and the state police have always been treated
differently than other public safety employees.
So they are unique in that regard.
And this type of punishment is also unique.
Municipal police departments typically
do not impose forfeiture of leave time.
-: So they take away an hour of accrued time.
That's can go to the civil service commission,
115 minutes of accrued time.
-: Well, what's equally illogical,
is that they could take away 30 days of accrued time.
And, if the department's argument prevails,
then there would be no right of effective review,
whereas, if they were suspended for just one day,
they would have the right to go
to the civil service commission.
(murmur)
-: In honor of the chief, I'm gonna ask
his favorite quick response,
which is just answer my question first,
which is, if it's a 15 minute loss of accrued time,
is that covered?
-: If that is the ultimate finding of a trial board
after disciplinary charges have been preferred
and the individual's been tried,
then that's the final action
and the trooper's aggrieved by that,
then under the language of section 13,
yes, they would have the right to go
to the civil service commission.
Kafker: Thank you.
-: Now, I think I've made my argument
that the language in the second sentence of section 13,
is procedural and it sets forth the standards
that are specified in sections 41 to 45 for commission,
and then subsequent superior court review.
But it does not indicate a constriction of the troopers
historical rights, independent appellate review
of any consequential disciplinary action.
There, was no limitation, it's very clear
in the law as it existed before 2002,
and this court recognized that
in the 1993 case I referenced.
So this history, both legislative and precedential,
was a key factor in the superior court's ruling
in this case, that the commission had jurisdiction
to entertain Sergeant Doherty's appeal.
-: Can I ask you to briefly address the closed courtroom
or closed hearing issue?
Would you concede that it probably wasn't a great idea
to close the entirety of the hearing
and if to take that was necessary
to protect Cory information,
the portion of the hearing dealing with those witnesses
should have been exclusively closed.
-: Well, there were two particular difficulties here,
Your Honor.
First of all,
there were 10 individuals that Sergeant Doherty
had interviewed and allegedly had threatened.
Eight of those individuals were interviewed
by state police investigators.
And all of that testimony could have played out
in the civil service commission hearing.
So, it would've been very difficult to anticipate
in advance, which criminal history
of which individual might be elicited
upon any given question.
The second difficulty is that the appellant waited
until the very last minute to submit the written request
for a couple of hearing.
It was submitted after the formal hearing had started.
The hearing technically had started on March 1st
and it wasn't until the start of testimony
on April 8th, that (murmur) made a written motion
for a public hearing.
And so, the hearing officer was forced
to make a split second decision,
not knowing all of the evidence that would come in,
but knowing that it would involve the criminal history
of upwards of half a dozen individuals,
he made the decision, he did.
I think in general, the civil service commission
is a very transparent organization.
It's always willing to accommodate,
but in this particular circumstance,
the hearing commissioner was trying to balance,
two conflicting statutory imperatives.
There is the imperative under the another Cory statute,
not to disseminate the criminal history information
of identified individuals.
And, this is the decision that was made.
-: So either way your argument is a timeless error
in any event.
-: Well, I would say that yes, if it was error,
and I'm not conceding that it was,
but if it was, then indeed the appellant should need
to show prejudice.
I think that's baked right into section 14 of chapter 38
before the commission decision could be disrupted.
-: Any further questions?
-: Just quickly on section 43, as I read it,
it said, "It shall be public if requested,"
that suggests to me it's presumptively private.
-: That's right, and that would be consistent with
the general principle in government
that personnel matters, criminal history
are not to be publicly aired unless required.
-: Thank you.
-: Thank you, counsel.
Quinan: Thank you.