Mass. Civil Service Has No Authority To Review Leave Forfeiture

Written on 07/09/2021
Will Aitchison

Denise Doherty has been employed by the Massachusetts State Police Department for over 20 years. From 2007 to 2012, Doherty was assigned to the Department’s certification unit, which is responsible for providing licensing services for private security, or watch guard, companies.

In October 2011, Doherty began an administrative inspection of a watch guard company referred to anonymously in later court opinions as the XYZ Watch Guard Company. Doherty reviewed the affidavits of XYZ’s employees and conducted probation record checks, which led her to determine that 10 or 11 XYZ employees had records of felony convictions.

Doherty subsequently conveyed to XYZ’s director of government affairs that these employees jeopardized XYZ’s license. Doherty then met with XYZ’s license holder and director of government affairs and informed them that she would contact the employees herself. XYZ provided Doherty with the employees’ contact information to do so.

In March 2013, the Department interviewed several XYZ employees who had been contacted by Doherty. The employees complained that Doherty was rude and unprofessional in their interactions. Moreover, one employee was incorrectly told by Doherty that the employee was unable to return to work at XYZ because of a prior felony conviction that did not exist. As a result of the Department’s investigation, Doherty was charged with violating the Department’s rules concerning unsatisfactory performance and truthfulness.

In December 2015, the Department convened a trial board, which heard evidence and ultimately found Doherty guilty of five specific violations. The trial board recommended that Doherty forfeit a total of two days of accrued leave time as punishment, and both the trial board’s findings and disciplinary recommendation were subsequently approved by the Department’s colonel.

Doherty appealed the Department’s decision to the Massachusetts Civil Service Commission. When the Commission issued a decision affirming the Department’s discipline of Doherty, she challenged the decision through the court system.

The Massachusetts Supreme Judicial Court upheld Doherty’s forfeiture of leave, but on purely procedural grounds. The Court looked at controlling Massachusetts statutes, which enumerate specific disciplinary actions that may be appealed to the Commission if they are not supported by just cause. Importantly, the Court found, “Loss of accrued leave time is not among the list of contemplated disciplinary actions. There is also no language in the statute suggesting that the list includes, but is not limited to, the enumerated disciplinary actions. Nor is there other equivalency or catch-all language in the statute.

“In the face of a plain language interpretation of the statute, the Commission contends that the loss of accrued leave time is the functional equivalent of a suspension. We are not persuaded. While the Department trial board is permitted the flexibility to impose loss of accrued leave time as an alternative to suspension, the availability of accrual leave time as an alternative indicates that accrual leave time is a lesser sanction to suspension and not an equivalent. In addition, the Department’s interpretation of its own regulations suggests significant distinctions between the two sanctions.

“We emphasize that our decision today does not leave without recourse those State police troopers who have been subject to department level discipline that does not meet the requirements of the law. Another statute expressly provides that any person may appeal a department order to the colonel, ‘who shall thereupon grant a hearing, and after such hearing the colonel may amend, suspend or revoke such order.’ Such internal appellate rights provide State police troopers protection against less significant forms of discipline.”

Doherty v. Civil Service Commission, 2020 WL 7485760 (Mass. 2020).

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