Massachusetts Parole Board v. Civil Service Commission

716 N.E.2d 155, 47 Mass. App. Ct. 760, 1999 Mass. App. LEXIS 1063, 139 Lab. Cas. (CCH) 58,783
CourtMassachusetts Appeals Court
DecidedSeptember 17, 1999
DocketNo. 98-P-148
StatusPublished
Cited by4 cases

This text of 716 N.E.2d 155 (Massachusetts Parole Board v. Civil Service Commission) 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
Massachusetts Parole Board v. Civil Service Commission, 716 N.E.2d 155, 47 Mass. App. Ct. 760, 1999 Mass. App. LEXIS 1063, 139 Lab. Cas. (CCH) 58,783 (Mass. Ct. App. 1999).

Opinion

Porada, J.

The Massachusetts Parole Board (board) appeals from a judgment of the Superior Court affirming a decision of the Civil Service Commission (commission) reinstating a parole officer (Maurice) who had been discharged by the board. The issues presented are whether the board’s letter to Maurice to appear at an investigatory hearing was sufficient to give him notice that his refusal to appear could result in his dismissal and whether Maurice’s good faith reliance on the advice of his at[761]*761torney not to appear at the hearing barred the board from discharging him. We conclude that Maurice received adequate notice and that Maurice’s good faith reliance on the advice of his attorney did not bar his discharge. We, therefore, reverse the judgment and remand the case to the Superior Court for the entry of an order reversing the action of the commission.

The facts. On or about November 2, 1988, the chairman of the board received information that a female probationer had alleged at a probation revocation hearing that Maurice had secured permission for her absence from a residential counseling program she had been ordered to attend, and that, on one occasion, Maurice had allegedly brought her to a secluded area and assaulted her. The chairman was also informed that Maurice had allegedly misrepresented certain facts to a probation officer about his conduct relating to this probationer.

As a result, the chairman sent Maurice a letter ordering him to appear on November 4, 1988, at an investigative interview relating to his having “to appear as a witness on behalf of [the probationer] in the matter of her probation surrender hearing . . . .’’In that letter, the chairman advised Maurice that “[he had] the right to remain silent, although [he could] be subject to disciplinary action by the Parole Board in the form of a discharge for [his] failure to answer material and relevant questions relating to the performance of [his] duties as an employee of the Commonwealth of Massachusetts.”2

Maurice did not appear at the interview. Maurice’s attorney, however, called the board to inform them that Maurice would not appear at his direction. The attorney also wrote a letter to [762]*762the board outlining the following reasons for Maurice’s refusal to appear: (1) the board had no authority to conduct an investigatory interview; (2) the board’s failure to adopt procedures for the conduct of such an interview violated Maurice’s right to due process under Federal and State constitutions; (3) the board gave less than twenty-four hour notice of the hearing to Maurice; (4) the board had no authority to grant use immunity to Maurice; (5) the board had no authority to advise Maurice that he could be prosecuted for making a false statement; and (6) Maurice’s refusal to answer questions under the circumstances did not constitute insubordination.

As a result of Maurice’s refusal to appear at the interview, the commission held a discharge hearing at which Maurice was present with counsel. Following this hearing, the board discharged Maurice for his failure to appear and cooperate with the investigatory interview in defiance of the chairman’s order.

Maurice appealed the board’s dismissal to the commission. An administrative magistrate found that the board did not have just cause to terminate Maurice because his refusal to appear was not meant to defy or undermine the chairman’s authority, but was “a good faith attempt to assert his constitutional rights.” The commission adopted the findings of fact contained in the magistrate’s decision. It then ruled, based on its interpretation of Carney v. Springfield, 403 Mass. 604 (1988), that the board did not have just cause to terminate Maurice because he was within his constitutional rights in declining to participate in the investigatory interview absent a grant of transactional immunity pursuant to article 12 of the Declaration of Rights of the Massachusetts Constitution. The board appealed the decision to the Superior Court.

[763]*763A Superior Court judge ruled that the commission erred in concluding that Maurice had the right, by reason of his privilege against self-incrimination, not only to refuse to answer specific questions, but also to refuse to appear. The judge reasoned that, where the employee fails to appear and consider the questions propounded to him, there is no basis on which to decide whether his claim of privilege is legitimate.

Notwithstanding this ruling, the judge did not reverse the decision, but remanded the case to the commission to determine whether Maurice’s discharge was proper in light of the magistrate’s finding that his refusal to appear was not an act of defiance, but an act based on his good faith reliance on his attorney’s advice that he had a constitutional privilege to refuse to appear.

Upon remand, the commission affirmed its prior decision to reinstate Maurice on the grounds that Maurice’s good faith reliance on his attorney’s advice that he had a constitutional right not to appear, coupled with the board’s failure to inform him that his failure to appear could result in a discharge, did not warrant his dismissal. The commission also noted that had “[Maurice] been informed of the consequences of a failure to appear and then voluntarily elected not to present himself at the required place and time,” the board would have had just cause to terminate him. The board appealed this decision to the Superior Court. A different Superior Court judge affirmed the commission’s decision.

Discussion. 1. Notice. The board argues that the notice to appear at the investigatory interview was sufficient to advise Maurice of the disciplinary consequences of noncompliance as it informed him that if he did not answer material and relevant questions pertaining to the performance of his duty, he could be discharged. The judge noted in her decision that if you do not appear, you cannot answer. Nevertheless, relying on the Carney decision, she concluded that the notice was deficient because it failed to inform Maurice that he could be discharged for his refusal to appear and did not contain an offer of transactional immunity.3

We think the judge’s reliance on the Carney decision is misplaced. In Carney, the court held that a public employer [764]*764who, during an investigation, compels answers from an employee “at the time of the interrogation” must specify the precise repercussions that will result if the employee fails to respond (emphasis supplied). Carney v. Springfield, 403 Mass, at 609. Here, no interrogation had yet occurred and, unlike the employee in the Carney case, Maurice had not been furnished with a list of questions to which his response was required.

The letter to Maurice specified that the area of inquiry the board would pursue concerned Maurice’s precise involvement in the matter of the female probationer’s surrender hearing. It is not self-evident from that letter that the board would have asked Maurice any questions that would have triggered his right to invoke the privilege against self-incrimination, which we assume is the constitutional right being asserted by Maurice.4 Certainly, the board would have had the right to ask him questions relating to his alleged role in securing the probationer’s absence from a counseling program and Maurice would not have had any right to refuse to answer those questions. Broderick v.

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Bluebook (online)
716 N.E.2d 155, 47 Mass. App. Ct. 760, 1999 Mass. App. LEXIS 1063, 139 Lab. Cas. (CCH) 58,783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/massachusetts-parole-board-v-civil-service-commission-massappct-1999.