This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Tony Rego, a former patrolman with the Maynard police department, appeals from a judgment of the Superior Court reversing a Civil Service Commission (commission) decision finding that he was wrongfully terminated. We affirm.
The administrative record establishes the following undisputed facts. The Maynard police department (department) hired Rego in November, 2005. In late 2010, the chief of police noticed that the focus of certain " pan, tilt, and zoom" cameras (PTZ cameras) were being moved from their preset locations. As a result, on December 16, 2010, the second in command at the station, Lieutenant James Dawson, sent an order via electronic mail message (e-mail) to the department stating: " Per Chief Corcoran no one is [to] move or change the location of the front and rear pan, tilt, zoom (PTZ) cameras from the controls at dispatch. They are to remain in the preset viewing areas. Supervisors please cover at roll call." Sergeant Thomas Neufell sent an e-mail to the chief and the Maynard town manager expressing his belief that the order created a safety issue. The order was not rescinded. Nevertheless, certain officers continued to move the PTZ cameras.
On February 2, 2011, the chief ordered an internal investigation of suspected violations of the order. As part of the investigation, Rego was ordered to meet with Dawson and another officer. Having received notice of the meeting only shortly before it was to begin, Rego disobeyed direct orders to enter the conference room and be seated. A loud, verbal altercation ensued during which Rego waved a union rights card and refused to participate in the meeting. The chief learned of these events and placed Rego on paid administrative leave.
The internal investigation revealed the following facts. Rego moved the PTZ cameras approximately nine times after issuance of the special order. He also made a videotape recording (video), on his personal cellular telephone, of the PTZ camera monitor in the dispatch area displaying a woman in the police department parking lot. Claiming that the chief had directed the PTZ camera at the woman from the controls in his office, Rego shared the video with the town manager, family, and close friends. Rego also told the town manager that a female town employee was " scared" that she was being watched. In fact, the town employee had no concerns about the cameras, and never told Rego that she did.
By letter dated April 20, 2011, the chief informed Rego that he would be the subject of a disciplinary hearing for the violation of several departmental rules and regulations. Specifically, the chief cited Rego's violation of an order, lack of truthfulness, improper dissemination of official information, and improper communication with local officials, all in relation to his behavior concerning the PTZ cameras. The chief also charged Rego with insubordination based on his behavior at the investigatory meeting. On June 27, 2011, by unanimous vote, the town of Maynard (town), as the appointing authority, terminated Rego's employment with the department.
Rego appealed his termination to the commission. Following a de novo hearing, it issued a decision finding that, apart from the insubordination charge, there was just cause to discipline Rego for violations of departmental rules and regulations related to the movement of the PTZ cameras. On the insubordination charge, the commission found insufficient cause to discipline Rego because, in its opinion, the investigating officers should have terminated the meeting as soon as Rego attempted to assert his right to union representation.
The commission also found that Rego had a history of previous discipline. On two prior occasions, the town had suspended Rego for five days for violations of departmental rules and regulations. Rego entered into settlement agreements with the town as to each of those incidents in exchange for his withdrawal of pending appeals to the commission. As a result, following a certain period of good behavior, one suspension was reduced to a written reprimand and the other was removed from his personnel file. He did not receive back pay as a result of either settlement.
The commission found little useful evidence of discipline at the station comparable to Rego's termination. While two other officers received written reprimands for moving the PTZ cameras after the special order was announced, no other officer had subjected the department to public ridicule and embarrassment in the manner Rego had. The commission further found the town had never before terminated a police officer, and that the most significant prior discipline was a five-day suspension of an officer for yelling at individuals while responding to a domestic violence call.
Taking into account Rego's behavior and prior discipline, but having found no precedent for terminating a police officer for analogous conduct, the commission concluded that " considerable discipline" was warranted but that termination was not. It accordingly modified the town's termination decision to an unpaid suspension beginning June 28, 2011, and ending April 30, 2013.
The town sought judicial review of the commission's decision pursuant to G. L. c. 30A, § 14. Upon review, the judge concluded that the commission had wrongly substituted its judgment for that of the appointing authority, and ordered the commission to ...