Argued December 6, 2013
Civil action commenced in the Superior Court Department on October 22, 2010.
The case was heard by Carol S. Ball, J., on motions for judgment on the pleadings.
Leo J. Peloquin for the plaintiff.
Robert L. Quinan, Jr., Assistant Attorney General, for Civil Service Commission.
Meghan C. Cooper for Leon Dykas.
Present: Fecteau, Sullivan, & Maldonado, JJ.
[26 N.E.3d 197] Maldonado, J.
The city of Worcester (city) appeals from a judgment
of the Superior Court upholding the determination of the Civil Service
Commission (commission) that an appointing authority may not suspend or
terminate a tenured employee for the employee's failure to testify at a hearing
pursuant to G. L. c. 31, § 41. The city contends that because § 41 does not
explicitly establish a statutory testimonial privilege [26 N.E.3d 198] and
because police department rules and regulations require officers to provide
truthful testimony when requested, the commission exceeded its authority
and improperly intruded upon the city's right to enforce its rules of conduct. We conclude that the commission's determination that, because the § 41 hearing is held for the protection of the tenured employee and not the appointing authority, the tenured employee may not be sanctioned for the employee's failure to testify at his § 41 hearing is consistent with the statutory purpose of § 41 and entitled to substantial deference. Therefore, we affirm.
The relevant facts drawn from the administrative record are undisputed. Leon Dykas was a tenured civil service employee, working as a police officer for the Worcester police department (department). In 2008, Dykas was purported to have engaged in noncriminal misconduct involving his ex-wife in violation of a " Last Chance Settlement Agreement" into which he had entered with the department. Dykas cooperated with the department's internal investigation and attended an investigatory interview at the department's bureau of professional standards (BOPS) as ordered. Following review of the BOPS report and a transcript of Dykas's interview, the chief of police, Gary Gemme, placed Dykas on paid administrative leave pending completion of the investigation.
Several months later, on July 2, 2009, Michael V. O'Brien, the city manager and appointing authority, scheduled a mandatory pretermination hearing pursuant to G. L. c. 31, § 41 (§ 41 hearing). O'Brien provided Dykas with the required statutory notice. He also ordered Dykas to attend and to testify truthfully at the § 41 hearing. The notice warned Dykas that his failure " to obey this directive in any respect could result in discipline, up to and including dismissal, ...