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rescinded the 2013 decision and dismissed the plaintiff's appeal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
1 Massachusetts Department of State Police. judgment on the pleadings and allowing the defendants' cross
motion because (1) the commission abused its discretion in
reopening the 2013 decision; (2) G. L. c. 31, § 43, mandates
reversal of the MSP's disciplinary action in the absence of a
finding of just cause for the plaintiff's termination; and (3)
the commission deprived the plaintiff of his right to due
process by providing insufficient notice in connection with the
reopening of the 2013 decision.2 We affirm.
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] . . .
2 The plaintiff also claims that the judge erred in denying his petition for reinstatement as moot. Because we conclude that the commission did not abuse its discretion in reopening its 2013 decision, and was not required under G. L. c. 31, § 43, to reverse the disciplinary action imposed by the MSP, we need not address the issue of mootness. Likewise, we need not address the plaintiff's argument that the judge improperly considered materials outside the administrative record in her mootness inquiry. 3 The plaintiff's brief often directs its arguments toward
the rulings of the Superior Court judge. However, our review of the commission's decision is de novo. See Merriam v. Demoulas Super Mkts., Inc., 464 Mass. 721, 726 (2013), citing Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 600 (2010) ("We review de novo a judge's order allowing a motion for judgment on the pleadings under Mass. R. Civ. P. 12 [c], 365 Mass. 754 [1974]"). Accordingly, we direct our analysis to a review of the decision of the commission.
2 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).
3 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
4 Here, the plaintiff claims that the abuse of discretion analysis must be particularly "exacting," as the commission, at the time of its reopening of the 2013 decision, was engaged in ongoing litigation against the plaintiff. In support of his position, the plaintiff cites Stowe v. Bologna, 32 Mass. App. Ct. 612, 616 (1992), S. C. 415 Mass, 20 (1993). However, the cited text supports only the general proposition that an administrative agency's inherent authority to reopen a decision should be used sparingly, so as to promote finality and reliability. See id.
4 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
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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
1 Massachusetts Department of State Police. judgment on the pleadings and allowing the defendants' cross
motion because (1) the commission abused its discretion in
reopening the 2013 decision; (2) G. L. c. 31, § 43, mandates
reversal of the MSP's disciplinary action in the absence of a
finding of just cause for the plaintiff's termination; and (3)
the commission deprived the plaintiff of his right to due
process by providing insufficient notice in connection with the
reopening of the 2013 decision.2 We affirm.
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] . . .
2 The plaintiff also claims that the judge erred in denying his petition for reinstatement as moot. Because we conclude that the commission did not abuse its discretion in reopening its 2013 decision, and was not required under G. L. c. 31, § 43, to reverse the disciplinary action imposed by the MSP, we need not address the issue of mootness. Likewise, we need not address the plaintiff's argument that the judge improperly considered materials outside the administrative record in her mootness inquiry. 3 The plaintiff's brief often directs its arguments toward
the rulings of the Superior Court judge. However, our review of the commission's decision is de novo. See Merriam v. Demoulas Super Mkts., Inc., 464 Mass. 721, 726 (2013), citing Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 600 (2010) ("We review de novo a judge's order allowing a motion for judgment on the pleadings under Mass. R. Civ. P. 12 [c], 365 Mass. 754 [1974]"). Accordingly, we direct our analysis to a review of the decision of the commission.
2 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).
3 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
4 Here, the plaintiff claims that the abuse of discretion analysis must be particularly "exacting," as the commission, at the time of its reopening of the 2013 decision, was engaged in ongoing litigation against the plaintiff. In support of his position, the plaintiff cites Stowe v. Bologna, 32 Mass. App. Ct. 612, 616 (1992), S. C. 415 Mass, 20 (1993). However, the cited text supports only the general proposition that an administrative agency's inherent authority to reopen a decision should be used sparingly, so as to promote finality and reliability. See id.
4 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.
5 In relevant part, § 43 states, "If the commission by a preponderance of the evidence determines that there was just cause for an action taken against such person it shall affirm the action of the appointing authority, otherwise it shall reverse such action and the person concerned shall be returned to his position without loss of compensation or other rights; provided, however, if the employee, by a preponderance of evidence, establishes that said action was based upon harmful error in the application of the appointing authority's procedure, an error of law, or upon any factor or conduct on the part of the employee not reasonably related to the fitness of the employee to perform in his position, said action shall not be sustained and the person shall be returned to his position without loss of compensation or other rights. The commission may also modify any penalty imposed by the appointing authority." G. L. c. 31, § 43.
5 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
6 The plaintiff cites to two statements in the 2013 decision in support of his position that such decision found an absence of "just cause" under § 43: (1) "The Massachusetts State Police did not establish just cause to terminate Tpr. Sweet," and (2) "[the evidence] cannot justify [Tpr. Sweet's] dishonorable discharge." However, these statements do not use the terms "just cause" and "justify" in the statutory sense. As discussed, supra, § 43 mandates the reversal of an appointing authority's disciplinary action when just cause is lacking for disciplinary action; the inquiry is not penalty specific. See Police Comm'r of Boston, 39 Mass. App. Ct. at 599. Accordingly, the statements above, which specifically address the plaintiff's termination, do not trigger § 43.
6 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
7 Notably, the plaintiff's contention that "this was a major basis on which the [c]omission actually justified . . . its decision," lacks an accompanying record citation.
7 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.
8 The panelists are listed in order of seniority.