Bickford v. Colonel, Department of State Police

920 N.E.2d 905, 76 Mass. App. Ct. 209, 2010 Mass. App. LEXIS 86
CourtMassachusetts Appeals Court
DecidedJanuary 29, 2010
DocketNo. 08-P-1288
StatusPublished
Cited by2 cases

This text of 920 N.E.2d 905 (Bickford v. Colonel, Department of State Police) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bickford v. Colonel, Department of State Police, 920 N.E.2d 905, 76 Mass. App. Ct. 209, 2010 Mass. App. LEXIS 86 (Mass. Ct. App. 2010).

Opinion

McHugh, J.

David Bickford, a police officer employed by the [210]*210Massasoit Community College police department (MCCPD), appeals from a judgment of the Superior Court affirming an order issued by the colonel of the State police suspending Bickford’s warrant as a special State police officer (SSPO). See G. L. c. 22C, § 63.1 Bickford maintains that the suspension rested on an impermissible ground and that he had not been given sufficient notice that his record-keeping practices would be at issue during the administrative hearing that led to the suspension order. After careful review of the record, we find no error and affirm.

Background. Substantial evidence in the record, see G. L. c. 30A, §§ 1(6), 14(7)(e), supports the hearing officer’s findings that Bickford was the MCCPD’s armorer and, as such, was responsible for identifying, retrieving, inspecting, and storing all weapons assigned to MCCPD officers and for maintaining an accurate log of the weapons’ location.

Events leading to Bickford’s suspension began in 2006 when he returned to work from a three-month disability leave to discover that an MCCPD pistol and three to five magazine clips were missing from his locker. Bickford’s report of the disappearance to the MCCPD chief triggered a State police investigation.

Although the investigation did not uncover the missing firearm, it did reveal a host of other problems with Bickford’s performance as armorer. Specifically, the investigation showed that in the year 2000, he participated in taking a personal firearm from MCCPD Sergeant Ann Holland’s desk drawer to “secure it” without telling her he had done so. In violation of protocol, he did not report the incident to the MCCPD chief and instead kept the weapon for an extended period because, according to his testimony at the administrative hearing, he “forgot about it.” The investigation further revealed that due to Bickford’s substandard record-keeping, at least one additional MCCPD firearm was missing. In fact, at one point, Bickford lost his firearms log [211]*211book and did not find it for at least three years, a period during which he completely stopped keeping a firearms log of any kind.2 Bickford initially responded to all questions posed to him during the investigation but later, after consulting with his attorney, declined to submit to a polygraph examination and to further interviews without the presence of his attorney.

On July 19, 2006, the commander of the State police certification unit sent the MCCPD chief a letter suspending Bickford’s SSPO warrant pending the outcome of certain criminal complaints and completion of the ongoing investigation into Bickford’s suitability to serve as an SSPO. The letter said that Bickford had “not been cooperative in the investigation,” noted the missing weapons, and also noted the incident with Sergeant Holland’s firearm. In August, 2006, Bickford appealed the suspension and sought a hearing pursuant to G. L. c. 22C, § 43.3 The hearing was held, and thereafter, a hearing officer issued a comprehensive report in which he found, among other things, that two firearms last seen in Bickford’s custody were missing and could not be found. That finding accompanied other findings regarding Bickford’s deficient performance, two of which were that Bickford had “refused to cooperate with a criminal investigation and knowingly disregarded his law enforcement responsibilities and duties” and that he had “grossly neglected his duties and responsibilities as the armorer of the [MCCPD] by failing to accurately maintain Firearms Log records, fail[ing] to accurately record the issuance and retrieval of Department weapons, and failing] to safely secure weapons.” For those reasons, the examiner recommended that Bickford’s suspension be affirmed. After the State police colonel accepted the recommendation and suspended Bickford’s warrant, MCCPD put him on indefinite leave.

[212]*212In December, 2006, Bickford petitioned for judicial review under G. L. c. 22C, § 43,4 and G. L. c. 30A, § 14(7).5 A Superior Court judge ultimately denied Bickford’s motion for judgment on the pleadings and entered judgment for the colonel. The judge rejected Bickford’s contention that he had no notice that negligent record-keeping would be at issue in the hearing. He further found that although it was an error of law to base the warrant suspension on Bickford’s decision to decline a polygraph examination, the record contained substantial evidence of independent deficiencies that were sufficient to support the suspension decision. Specifically, the judge cited Bickford’s failure to comply with record-keeping and inventory duties, Sergeant Holland’s testimony about the incident involving her weapon, and other witnesses’ testimony about additional firearms that went missing on Bickford’s watch.

Discussion. On this appeal, Bickford claims that the Superior Court judge erred in failing to remand the matter for a new hearing after determining that the State police hearing officer committed an error of law by listing his failure to cooperate as one of the grounds for his suspension. Second, Bickford claims the judge erred in concluding that he received sufficient notice of the nature of the charges to be addressed at the hearing.

Dealing first with claimed error of law, we begin by observing that “[t]he scope of review of [an agency] decision, both in the Superior Court and in [an appellate] court, is defined by G. L. c. 30A, § 14.” Burlington v. Labor Relations Commn., 390 Mass. 157, 161 (1983). Section 14(7) authorizes a reviewing court to “affirm the decision of the agency, or remand the matter for further proceedings before the agency; or . . . set aside or modify the decision ... if it determines that the substantial rights of any party may have been prejudiced because the agency [213]*213decision is,” among other things, “[b]ased upon an error of law.” Here, as the Superior Court judge found, the State police hearing officer did make an error of law by citing failure to cooperate with the investigation as a ground for the decision to suspend Bickford’s warrant. See Carney v. Springfield, 403 Mass. 604, 608-610 (1988) (“public employees cannot be discharged simply because they invoke their privilege under the Fifth Amendment to the United States Constitution not to incriminate themselves in refusing to respond to questions propounded by their employers”; “art. 12 of the [Massachusetts] Declaration of Rights requires transactional immunity to supplant the privilege against self-incrimination, even in the context of public employment”).6

Bickford claims that the error of law vitiates the administrative proceeding and requires a remand for a new, error-free administrative proceeding. We do not agree. As “[t]he appealing party [, Bickford] has the burden of showing that his ‘substantial rights . . . may have been prejudiced’ by the agency’s error.” Catlin v. Board of Registration of Architects, 414 Mass. 1, 6 (1992). The administrative findings regarding Bickford’s role in the disappearance of Sergeant Holland’s weapon and his grossly deficient approach to record-keeping, an approach that led to the disappearance of two police firearms, have substantial evidentiary support in the record and, by themselves, provide compelling reasons for suspension of his warrant.

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920 N.E.2d 905, 76 Mass. App. Ct. 209, 2010 Mass. App. LEXIS 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bickford-v-colonel-department-of-state-police-massappct-2010.