Spencer v. Civil Service Commission , 479 Mass. 210 ( 2018 )

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SJC-12326
LUIS S. SPENCER vs. CIVIL SERVICE COMMISSION & another.1
Suffolk. December 4, 2017. - March 27, 2018.
Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.
Commissioner of Correction. Public Employment, Resignation.
Civil Service, Decision of Civil Service Commission,
Termination of employment, Findings by commission.
Jurisdiction, Civil Service Commission. Words,
"Termination of his service."
Civil action commenced in the Superior Court Department on
December 8, 2015.
The case was heard by Robert N. Tochka, J., on motions for
judgment on the pleadings.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
David A. Russcol (Monica R. Shah also present) for the
plaintiff.
Jesse M. Boodoo, Assistant Attorney General, for the
defendants.
1 Department of Correction.
2
KAFKER, J. The issue presented is whether Luis S. Spencer,
who resigned under pressure as Commissioner of Correction
(commissioner) in the midst of a public investigation of his
oversight of Bridgewater State Hospital, has a right, pursuant
to G. L. c. 30, § 46D, to revert to a tenured civil service
correction officer II position he last held in 1992. Upon his
resignation and the denial of his request to revert, Spencer
filed an appeal with the Civil Service Commission (commission).
The commission concluded that the right to revert to a civil
service position applies only to involuntary terminations, not
voluntary resignations, and because Spencer voluntarily
resigned, no "termination of his service" had occurred within
the meaning of G. L. c. 30, § 46D. Spencer brought a complaint
against the commission and the Department of Correction
(department), seeking judicial review of the commission's
decision. A judge in the Superior Court affirmed the
commission's decision. Spencer appealed, and we transferred his
appeal to this court on our own motion. We conclude that § 46D
does not provide a right to revert in these circumstances and
that the commission's interpretation of this ambiguous statutory
language is reasonable, as it applies the same rules for
reversion to managers as it does to all other civil service
employees and avoids the type of manipulation of retirement
3
benefits at issue here. Accordingly, we affirm the decision of
the commission.
1. Background. a. Statutory framework. Under the
Commonwealth's civil service statutory scheme, a number of rank
and file and lower level management positions, particularly in
public safety, are covered by the civil service laws. A tenured
civil service employee cannot be demoted, discharged, or
suspended from such positions without just cause. See G. L.
c. 31, §§ 1, 41. Rather, the appointing authority must follow
specific procedures to terminate a tenured civil service
employee, and the employee is entitled to a full hearing before
such termination takes effect. G. L. c. 31, § 41. Where a
tenured civil service employee is terminated for "lack of work
or lack of money or abolition of positions," the employee may
opt to be demoted to his or her next lowest title, instead of
being terminated, "if in such next lower title or titles there
is an employee junior to him in length of service." See G. L.
c. 31, § 39. This practice is known as "bumping." See Andrews
v. Civil Serv. Comm'n, 446 Mass. 611, 619 (2006). By contrast,
if an employee resigns, there is no provision granting him or
her the right to request his or her prior position. See G. L.
c. 31, § 39.
The civil service laws do not apply to middle and upper
level management positions in public service. See G. L. c. 30,
4
§§ 46D, 46E, 46F. However, under G. L. c. 30, § 46D, a middle
or upper level manager may revert or "bump" back to the tenured
civil service position from which he or she has been promoted
upon "termination of his [or her] service."2 For middle and
upper level managers who were "terminated for cause," the right
to revert is more limited and must be determined by a hearing
2 General Laws c. 30, § 46D, provides:
"Whenever it is deemed practicable in the judgment of
the appointing authority and with concurrence with the
secretary, where applicable, appointments to positions
allocated to job groups M–I through M–IV, inclusive, of the
management salary schedule shall be made by promoting
employees of the [C]ommonwealth serving in positions
assigned to the general salary schedule; and appointments
to positions allocated to job groups M–V through M–XII,
inclusive, in the management salary schedule shall be made
by promoting managers of the [C]ommonwealth serving in
positions allocated to job groups M–I through M–IV,
inclusive, in the management salary schedule.
"In every instance of a manager or employee so
promoted from a position classified under [G. L. c. 31] or
from a position in which at the time of promotion he shall
have tenure by reason of [G. L. c. 30, § 9A], upon
termination of his service in the position to which he was
so promoted, the manager or employee shall, if he so
requests, be restored to the position from which he shall
have been promoted, or to a position in the same [S]tate
agency, without impairment of his civil service status or
his tenure by reason of said [§ 9A] or loss of the
seniority, retirement and other rights to which
uninterrupted service in such position would have entitled
him; provided, however, that if his service in the position
to which he was promoted shall have been terminated for
cause, his right to be restored shall be determined by the
civil service commission, in accordance with the standards
applied by said commissioner in administering [G. L.
c. 31]."
5
before the commission, in accordance with the standards set out
in G. L. c. 31. See G. L. c. 30, § 46D.
b. Facts. We summarize the facts as recited in the
commission's statement of undisputed facts. Spencer was first
appointed to a civil service position in 1980 when he became a
Correction Officer I (CO-I). In 1991, he was appointed captain,
the first in a string of appointments to nontenured management
positions. In 1992, he received a one-day permanent appointment
to Correction Officer II (CO-II), the highest tenured civil
service position he would ever hold. He was granted a permanent
leave of absence from this position3 and continued up the ranks
of nontenured management positions, being appointed director of
security in 1993, deputy administrator in 1995, superintendent
in 1997, and assistant deputy commissioner in 2008.
In 2011, Spencer was appointed as commissioner by the
Secretary of the Executive Office of Public Safety & Security
(Secretary). His appointment was approved by the Governor. In
2014, Spencer came under intense public scrutiny for his
handling of the investigation into an inmate's death at
Bridgewater State Hospital. In March, 2014, Spencer received a
written letter of reprimand from the Secretary for his failure
3 Although Spencer's appointment to Correction Officer II
(CO-II) was only for one day, his request for a permanent leave
of absence from that position was not officially granted until
2003, over eleven years after he left the position.
6
to track the results of the investigation vigilantly. The
letter ordered Spencer to "revisit the investigation and place
the officers involved on administrative leave, pending renewed
inquiry into the matter."
In July, 2014, details emerged of another incident at
Bridgewater State Hospital that took place in May, 2014, this
time involving the alleged abuse of a mental health patient by a
correction officer. On July 22, 2014, the Secretary spoke with
Spencer by telephone, and informed him that the Governor had
requested Spencer's resignation. The Secretary requested that
Spencer send her two letters of resignation, one dated July 23,
2014, and one dated July 28, 2014, in the event that it took a
few days for the department to transition to a new commissioner.
On July 23, Spencer contacted the acting assistant deputy
commissioner for human resources. Spencer asked her to confirm
department practice on reverting to a prior civil service
position, and to send the sample language for requesting to
revert. After receiving the sample language, Spencer sent the
Secretary two copies of his resignation letter, one dated July
23, 2014, and the other dated July 28, 2014. The resignation
letter highlighted Spencer's accomplishments as commissioner,
and concluded with the following statement: "I ask that you
respectfully accept my resignation from my appointed position as
the [commissioner] and accept my request to revert back to my
7
last uniformed position, which was [c]aptain for the
[department]."4 Later the same day, Spencer also sent the
Secretary an additional letter specifically requesting to revert
to his captain position and a second, amended reversion letter,
with additional salary information. Spencer stated in his
reversion letter that "[i]f this request is approved . . . I
would then be able to retire within a year at [eighty per cent].
If I retire from the [department] on this date I would only be
eligible for 50.4 [per cent]." Spencer also sent the Secretary
a page from the "Benefit Guide for the Massachusetts Employee's
Retirement System," and highlighted the criteria for "certain
correction officers" to be classified in "Group Four" for
retirement purposes. One such requirement is that the employee
be "actively performing the duties of the [Group Four] position"
for twelve consecutive months immediately preceding retirement.
If Spencer retired as commissioner, he would be classified in
the less lucrative "Group One."
4 Spencer's prior position as CO-II, not captain, was the
last permanent civil service position he held. If he was
permitted to revert to a position in which he previously had
tenure, he would be reverted to his CO-II position, which he
last held twenty-two years prior, in 1992. The statute does
provide that "the manager or employee shall, if he so requests,
be restored to the position from which he shall have been
promoted, or to a position in the same [S]tate agency." G. L.
c. 30, § 46D. However, the Civil Service Commission
(commission) has limited the entitlement to reversion to apply
only to prior permanent positions, not any other prior position.
O'Donnell v. Registry of Motor Vehicles, 22 Mass. Civ. Serv.
Rep. 638, 642 (2009).
8
The next day, the Secretary spoke with Spencer about his
resignation by telephone. The Secretary said that the Governor
would accept Spencer's resignation only if it was unconditional,
and that the terms of the resignation would not be negotiated.
Therefore, Spencer could not include the request to revert in
his resignation letter. According to Spencer, the Secretary
told him that "if [he] did not allow that request to be removed,
[his] employment would be terminated." The Secretary also
indicated to Spencer that his request to revert from
commissioner to a correction officer was "unprecedented" and
voiced her concerns about his continued presence in the
department. She did tell him that "she would consider [his]
request to be reinstated."
After their conversation, the Secretary sent Spencer a
revised copy of Spencer's resignation letter. The letter was
identical to the resignation letter Spencer had sent the day
before, except that the Secretary had removed the request to
revert. Spencer acknowledged receipt of the revised resignation
letter. Internal department paperwork stated that the reason
for Spencer's termination was "Resigned from Mgmt position
7/24/14."
Four days later, the Secretary verbally informed Spencer
that his request to revert was denied. On July 30, 2014,
Spencer sent a new request for reversion to the acting assistant
9
deputy commissioner. On August 7, 2014, Spencer was informed
that this request had been denied. Spencer sent a second
request for reversion to the acting assistant deputy
commissioner that same day. In a letter dated August 15, 2014,
Spencer was informed his second request had also been denied.
On August 28, 2014, Spencer filed an appeal with the
commission. The department filed a motion to dismiss, and the
commission permitted both parties to submit evidence as to the
factual issues.5 After conducting a hearing on the motion, the
commission granted the department's motion and dismissed the
case. Spencer thereafter sought judicial review of the
commission's decision.
3. Discussion. We may set aside the commission's decision
only if "'the substantial rights of any party may have been
prejudiced' [because the commission decision] is based on an
error of law, unsupported by substantial evidence, or otherwise
not in accordance with the law." Police Dep't of Boston v.
Kavaleski, 463 Mass. 680, 689 (2012) (Kavaleski), quoting G. L.
c. 30A, § 14 (7). The party appealing bears a heavy burden
because "we give 'due weight to the experience, technical
5 Motions to dismiss before the commission differ somewhat
from such motions under Massachusetts Rules of Civil Procedure,
as they may be made after the presentation of evidence. Compare
801 Code Mass. Regs. § 1.01(7)(g) (1998) with Mass. R. Civ. P.
12, 365 Mass. 754 (1974).
10
competence, and specialized knowledge of the commission.'"
Kavaleski, supra, quoting G. L. c. 30A, § 14 (7).
a. Right to reversion. The primary issue raised on appeal
is the meaning of "termination of his service" within G. L.
c. 30, § 46D. Spencer argues that his resignation was a
"termination of his service" under the statute. He claims that
"termination of his service" applies to voluntary as well as
involuntary separations from employment, and that even if it
applied only to involuntary separations, his resignation was
coerced by the Governor and the Secretary. The commission
disagreed, finding "termination of his service" does not apply
to voluntary resignations, regardless of the reasons for
resigning. Spencer contends that the commission's
interpretation of G. L. c. 30, § 46D, is owed no substantial
deference because the commission is responsible only for
administering the civil service laws, not G. L. c. 30.
i. Meaning of termination of his service. "Our primary
duty in interpreting a statute is 'to effectuate the intent of
the Legislature in enacting it.'" Campatelli v. Chief Justice
of the Trial Court, 468 Mass. 455, 464 (2014), quoting Water
Dep't of Fairhaven v. Department of Envtl. Protection, 455 Mass.
740, 744 (2010). "Ordinarily, if the language of a statute is
plain and unambiguous it is conclusive as to legislative
intent. . . . However, time and again we have stated that we
11
should not accept the literal meaning of the words of a statute
without regard for that statute's purpose and history"
(citations omitted). Sterilite Corp. v. Continental Cas. Co.,
397 Mass. 837, 839 (1986). Moreover, "substantial deference" is
owed "to a reasonable interpretation of a statute by the
administrative agency charged with its administration [and]
enforcement." Commerce Ins. Co. v. Commissioner of Ins., 447
Mass. 478, 481 (2006). However, "[a]n incorrect interpretation
of a statute . . . is not entitled to deference." Kszepka's
Case, 408 Mass. 843, 847 (1990).
"[T]ermination of his service" is not a well-understood
term of art such as "termination for cause." While at least ten
other statutes contain very similar wording,6 it appears that we
have not previously been tasked with interpreting the meaning of
"termination of his service" in any of those provisions. Even
when read in context, the plain meaning of "termination of his
6 See G. L. c. 6, § 75 (Massachusetts Rehabilitation
Commission); G. L. c. 6A, § 7 (Secretaries of executive
offices); G. L. c. 6C, § 39 (administrative offices of division
of highways); G. L. c. 7, § 4D (Executive Office of
Administration and Finance); G. L. c. 7, § 4J (Human Resources
Division); G. L. c. 10, § 26 (director of the State lottery);
G. L. c. 14, § 4 (Department of Revenue); G. L. c. 19A, § 10
(Department of Elder Affairs); G. L. c. 21A, § 6 (Executive
Office of Energy and Environmental Affairs); G. L. c. 25A, § 4
(Division of Energy Resources). In very different contexts see
also G. L. c. 30, § 32 (annual reports filed by State officers);
G. L. c. 32, § 10 (retirement allowance for civil service
employees); G. L. c. 41, § 127 (tenure for certain appointed
offices in cities, towns and districts); G. L. c. 151D, § 13
(vested benefits).
12
service" in G. L. c. 30, § 46D, remains somewhat ambiguous. The
term is not expressly defined in the statute. The civil service
statute, G. L. c. 31, which is cross-referenced in § 46D, also
does not employ or define this exact term, although it does
distinguish between involuntary discharges and voluntary
resignations. See G. L. c. 31, § 1 (defining "discharge" as
"permanent, involuntary separation," and "resignation" as
"permanent voluntary separation"). Although the phrase
"termination of his service" is used only once in § 46D, there
is a subsequent reference to employees "terminated for cause."
As terminations for cause are a subset of involuntary
terminations, the use of the phrase "terminated for cause" in
the same paragraph supports an interpretation that the reference
to "termination of his service" is similarly limited to
involuntary separations from employment. See Booma v. Bigelow-
Sanford Carpet Co., 330 Mass. 79, 82 (1953) ("It is a familiar
canon of construction, that when similar words are used in
different parts of a statute, the meaning is presumed to be the
same throughout"); Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass.
569, 583 (2012). For further guidance, however, we turn to the
legislative history and purpose. See Sterilite Corp., 397 Mass.
at 839.
Where, as here, the statutory language remains ambiguous,
"we consider 'the cause of its enactment, the mischief or
13
imperfection to be remedied and the main object to be
accomplished, [such that] the purpose of its framers maybe
effectuated.'" Water Dep't of Fairhaven, 455 Mass. at 744
(2010), quoting DiFiore v. American Airlines, Inc., 454 Mass.
486, 490 (2009). Prior to 1981, middle and upper managers were
eligible to receive civil service status and tenure. See 1981
House Doc. No. 6279 at 2. However, in 1981, the Governor
proposed a comprehensive overhaul of the Massachusetts civil
service system to the Legislature, accompanied by a letter and a
document explaining the details of the legislation. Id. at 1.
The legislation accomplished multiple, related purposes.
Notably, it removed upper and middle level managers from the
civil service system and increased their pay. See id. at 1-2;
St. 1981, c. 699, § 73. It thereby provided much greater
flexibility in the hiring, promotion, and removal of managers.
See 1981 House Doc. No. 6279. In his letter accompanying the
proposed bill, the Governor stated: "[T]he implementation of
this plan is essential if we are to encourage more
responsibility and accountability in our managers and if we are
to motivate such managers to assist in the achievement of the
state's objectives in a more economical and efficient manner."
Id. at 1. The summary of the legislation further indicated that
a modern personnel system required that "managers be recognized
as such -- a group separate and apart from employees; a group,
14
in fact, responsible for the supervision of those same
employees." Id. at 4.
The legislation also recognized the "demoralizing" effect
of having employees face limited opportunities for advancement.
Id. at 17. Accordingly, it strongly encouraged the promotion of
lower level managers into middle and upper level management
positions. Id. See G. L. c. 30, § 46D ("Whenever it is deemed
practicable . . . appointments to positions allocated to job
groups M-V through M-XII . . . shall be made by promoting
managers of the [C]ommonwealth serving in positions allocated to
job groups M-I through M-IV"). Because lower level managers
would lose their civil service status if promoted to a middle or
upper level management position, the bill further provided
limited protections against the termination of service of anyone
so promoted. 1981 House Doc. No. 6279 at 18. According to the
Governor, "[A]nyone promoted from such a position to a middle or
upper level position could retain such status or tenure and
could return to the position from which he or she was promoted."
Id. This would incentivize lower level managers to seek
promotion, despite the lack of civil service protections for
middle and upper management, by ensuring that, once promoted,
they still had a means of returning to their prior civil service
position if their service in a management position was
terminated. In essence, managers who had been promoted from the
15
ranks of civil service employees retained the right to bump back
to their former positions. This right to bump back or revert
is, as explained above, an important component of the civil
service laws. See G. L. c. 31, § 39.
We also look to the commission's interpretation of the
statutory language. See Commerce Ins. Co., 447 Mass. at 481.
Although the commission is not explicitly charged with
administering G. L. c. 30, this chapter is integrated into the
civil service laws that the commission is required to interpret
and enforce. Contrast Springfield v. Civil Serv. Comm'n, 469
Mass. 370, 380 (2014) (no special deference owed to commission's
interpretation of G. L. c. 268A, § 25, which makes no mention of
commission and relates to criminal misconduct). The entire
system must function in a coherent manner as manager reversion
rights ripple through the entire system, directly impacting the
rights of other civil service employees, who may be required to
bump each other. Cf. Malloch v. Hanover, 472 Mass. 783, 791
(2015) ("We interpret separate sections of statutes as a whole,
to produce internal consistency . . . and to give a 'rational
and workable effect'" [citations omitted]). Additionally, G. L.
c. 30, § 46D, specifically tasks the commission with
administering the provision's for cause hearings. Accordingly,
the commission's interpretation of the statute warrants some
deference if it is reasonable.
16
The commission recognized that this case involves an
"unprecedented" request from a former commissioner, the highest
ranking position in the organization, to be reinstated to his
last "uniformed" position in the department after resigning his
post at the request of the Governor. As the commission
explained, it has a long-standing practice of not treating civil
service resignations as terminations, and § 46D "rationally must
be construed to preserve, not abolish, the traditional, well-
recognized distinction in civil service law between involuntary
'termination' and voluntary resignation,' with involuntary
termination . . . being the sole trigger for any 'right' of an
employee to revert to a lower-level tenured position."
The commission's consistent enforcement of this distinction
provides important protections for all employees, those bumping
others as well as those being bumped. The system is designed to
provide a priority of protection against involuntary loss of
employment, rather than to allow one set of employees to
displace another at will. The commission's adoption of this
important principle in this context is persuasive. To do
otherwise would create an unfair advantage for upper level
managers over lower level managers and civil service employees.
It would extend the right to "bump" another civil service
employee upon voluntary resignation, whereas under the civil
service laws tenured civil service employees may only "bump"
17
into a lower level position upon involuntary separation from
service. See G. L. c. 31, § 39; Andrews, 446 Mass. at 612 n.3,
619.
The commission's interpretation also is fully consistent
with the statutory language and purpose. The references to
termination in § 46D, as explained above, appear to refer to
involuntary loss of employment. The statutory purpose also
suggests that managerial bumping rights be limited to those who
have been terminated from their managerial positions rather than
those who have decided for other reasons, such as pension
enhancement, to return voluntarily to the civil service ranks,
and thereby potentially force the involuntary termination of
another employee. The statutory scheme recognizes that promoted
managers are much more vulnerable to terminations, including
terminations for reasons related to changes in administrations
after elections, and § 46D was designed to protect such managers
from job loss for those reasons. There is nothing in the
legislative history suggesting that it also was intended to
allow managers who were not terminated to use reversion rights
to combine the benefits of both their managerial position and
their former civil service position to the detriment of rank and
file employees.
Spencer places heavy reliance on the fact that the
department previously allowed other upper level managers to
18
revert to their prior civil service position upon resignation.
Based on the record before us, there were indeed a number of
voluntary resignations in the department wherein employees were
allowed to resign and return to their former positions. To the
extent that we can determine the reasons for these requests from
the record, it appears that the employees were permitted to
revert to their former positions shortly before retirement in
order to retire from a position that would place them in Group
4.
Retirement benefits for public employees are calculated on
the basis of whichever "Group" an employee belongs to when he or
she retires. See G. L. c. 32, § 3 (2) (g). As commissioner,
Spencer belonged to Group 1. By contrast, certain uniformed
positions, including CO-II, fall within Group 4. Group 4
employees receive higher pensions at an earlier age than Group 1
because such positions entail significantly more hazardous
duties than positions in Group 1. Cf. Pysz v. Contributory
Retirement Appeal Bd., 403 Mass. 514, 518 (1988). "Providing
early retirement incentive to employees with hazardous
duties . . . has the effect of making room for younger employees
better able to perform that type of work." Id. See Gaw v.
Contributory Retirement Appeal Bd., 4 Mass. App. Ct. 250, 253-
254 (1976). Attaining Group 4 status, and the greater
19
retirement benefits it provides, was expressly referenced in
Spencer's communications with the Secretary.
Although we may consider departmental practice, we turn to
the statutory language, legislative history, and administrative
interpretation to determine if there is a statutory basis for
the practice. See Sterilite Corp., 397 Mass. at 839. Our own
views are informed by the thoughtful discussion of this practice
in the commission's decision. As explained by the commission,
prior to 2012, a practice known as "King for a Day" was commonly
employed to allow employees to revert to a uniformed position
for a single day to allow them to retire in Group 4. Effective
in 2012, the State pension law was changed to prevent these
single-day reversions, but even before this legislative reform,
such contrived or "sham" retirements had been deemed illegal.
See Pysz, 403 Mass. at 518; St. 2011, c. 176, § 8. Yet, as the
commission further explained:
"There is no dispute that, over the years, [the
department] has consented to similar requests of a
significant number of [department] managers, all below the
[department] [c]ommissioner level, to be demoted to
'uniformed-level' positions immediately prior to retirement
solely to qualify for such an enhanced pension that the law
arguably allowed. Assuming the law still permits the
practice, absent further legislative changes, the
[c]ommission has no power to prevent [the department] (or
others) from voluntarily choosing to enable its top
managers to accept demotions to lower level positions
(tenured or not) and take advantage of the law, although
the only motivation is to qualify the managers for enhanced
Group 4 benefits. It is another matter, however, to ask
the [c]ommission to put its imprimatur on such a
20
questionable practice by asking it . . . to mandate that
result in this, and, by implication, in every other similar
case, as a matter of law and public policy."
We agree with the commission. Although the department may
have a practice of permitting upper level managers to resign and
revert to their prior civil service positions for public pension
benefits, this does not mean that upper level managers have a
right to such reversion. We conclude that G. L. c. 30, § 46D,
was not designed to permit a high-level manager to voluntarily
resign and revert, particularly when he does so for the purpose
of attaining enhanced retirement benefits designed for a
hazardous employment position he has not occupied in twenty-five
years. Instead, § 46D is designed to provide managers
involuntarily terminated the right to revert to continue their
public service.
ii. Voluntariness of Spencer's resignation. Spencer
separately argues that his resignation was involuntary, because
he was misled or compelled to resign under the threat of
termination. As we have previously held in the context of
employee benefits under G. L. c. 41, § 111F, an employee's
resignation is voluntary absent a showing of fraud, coercion, or
duress. See Jones v. Wayland, 374 Mass. 249, 259-260 (1978),
S.C., 380 Mass. 110 (1980). Neither contention by Spencer rises
to this level. Nor has Spencer established that his resignation
was made "in reasonable reliance on misinformation received from
21
his employer." Commissioner of the Metropolitan Dist. Comm'n v.
Civil Serv. Comm'n, 25 Mass. App. Ct. 573, 576 (1988).
Spencer does not allege that the Secretary promised to
reinstate him as a CO-II, merely that she said she would
"consider" it. He received no guarantee that he could revert,
and he was informed of the "unprecedented" nature of his
request, given his position as commissioner. He also was aware
of the intense public scrutiny, the Governor's and the
Secretary's insistence that he resign or be terminated, and that
there be no strings attached to his resignation. No
misinformation or fraud has been alleged here.
Spencer's claims also do not rise to the level of coercion
or duress. The commission has consistently ruled that mere
evidence that a resignation was made under threat of discharge
or discipline is not enough. See, e.g., Forrest v. Weymouth
Fire Dep't, 28 Mass. Civ. Serv. Rep. 480, 482 (2015). Although
we recognize that Spencer was faced with a difficult choice when
he was told that his resignation would be accepted only if it
was unconditional, it was still a choice he freely made. See
Monahan v. Romney, 625 F.3d 42, 47 (1st Cir. 2010), cert.
denied, 563 U.S. 976 (2011) ("Because [the head of the
commission] resigned [albeit under pressure from the Governor
and the Governor's staff], his claim that defendants deprived
him of a property interest within the meaning of the Due Process
22
Clause necessarily fails"); Worcester v. Civil Serv. Comm'n, 18
Mass. App. Ct. 278, 283 (1984) ("We do not imply that the choice
put to the employee [under the civil service laws] is an easy
one. However, . . . it is not our function to ignore the plain
language of the statutes to avoid putting the employees to a
difficult decision"). As the commission explained, "Mr.
Spencer, an experienced senior manager, consciously chose the
resignation route that afforded him the opportunity to write his
own favorably-couched letter highlighting his career, rather
than face a difficult and costly process that would have likely
raised issues better left undisturbed." The decision to resign
allowed Spencer to leave the department on his own terms and
avoid further intense public scrutiny of his performance during
a high profile investigation of Bridgewater State Hospital.
Choosing to resign allowed Spencer to avoid the termination
process altogether, but in so doing, Spencer lost whatever
statutory entitlement he had to revert to his prior tenured
position.
b. Jurisdiction. Spencer contends that the commission
erroneously granted the department's motion to dismiss on the
basis of lack of jurisdiction. The commission did mention that
"this case does not invoke the [c]ommission's jurisdiction to
conduct . . . a 'just cause' hearing under the proviso of
[§] 46D," but that assertion is not the rationale for the
23
commission's decision. Rather, as discussed, the commission
evaluated whether Spencer fell within the plain language of the
"termination of his service" provision in G. L. c. 30, § 46D.
Spencer is apparently referencing his argument below that if the
commission chose not to restore his position on the basis of
G. L. c. 30, § 46D, in the alternative, it could do so under
G. L. c. 31 or St. 1993, c. 310, § 1.
As discussed, G. L. c. 31, § 41, prohibits discharging,
removing, or laying off a tenured civil service employee without
just cause. Where the appointing authority does not comply with
G. L. c. 31, § 41, and "the rights of [the tenured civil service
employee] have been prejudiced thereby," the employee is
entitled to have his or her employment restored. G. L. c. 31,
§ 42. Similarly, under St. 1993, c. 310, § 1, where a person's
civil service rights "have been prejudiced through no fault of
[his or her] own, the [commission] may take such action as will
restore or protect such rights." Because Spencer resigned, and
did so voluntarily, his rights were not prejudiced, and there is
no basis for relief under either provision.
c. Propriety of commission's factual findings. Finally,
Spencer also argues that the commission improperly made a
finding of fact adverse to Spencer, despite ruling on a motion
24
to dismiss.7 In its decision, the commission stated that "for at
least four days (July 24 to July 28), Mr. Spencer, while still
occupying this position of [department] [c]ommissioner, knew
that his resignation had been explicitly made unconditional but
took no action to protest, rescind or dispute that decision,
either before or after knowing those facts." The commission
later restated that in making the choice whether to resign or
fight, Spencer "[knew] the consequences of both choices."
Spencer contends that this constituted a finding of fact that
was both clearly erroneous and unsupported by substantial
evidence. We disagree.
According to Spencer's own affidavit, the Secretary
informed Spencer that "[his] request to revert to [c]aptain
could not be in [his] letter of resignation, and that if [he]
did not allow that request to be removed, [his] employment would
be terminated." Thus, by Spencer's own account, he was informed
that his resignation letter could not include the condition that
he be allowed to revert. In other words, he knew that the
resignation letter had to be unconditional. Yet, Spencer argues
7 Spencer also argues that the commission improperly cited
and applied the standard of review for motions for summary
decision. The commission contends that it has a long-standing
practice of deciding motions to dismiss under the same standard
as motions for summary disposition, as both are presumptively
evidentiary motions. See 801 Code Mass. Regs. § 1.01(7)(g)(1),
(h). We do not address this issue, as we conclude that the
commission did not make improper findings of material fact.
25
that his resignation was not unconditional, because even after
his conversation with the Secretary, he "fully believed and
understood that, by legal right and past practice, he would be
restored to a uniformed position, but that request could not be
in the resignation letter itself." This too is undermined by
Spencer's own affidavit, which states that the Secretary said
that "she would consider [his] request to be reinstated"
(emphasis added), not that she would grant it.
Ultimately, Spencer takes issue with the commission's
determination that Spencer's resignation was voluntary. He
believes the commission "resolved a contested issue of material
fact" against him by doing so. However, the voluntariness of
his resignation was not simply a factual finding, but a legal
one. For the reasons discussed above, the commission correctly
concluded that Spencer's resignation was voluntary.8
Judgment affirmed.
Spencer also argues that the commission was incorrect to
8
find he was still commissioner from July 24 to July 28, because
the Secretary of the Executive Office of Public Safety &
Security forwarded him the revised letter on July 24, and a
Boston Globe article was published the same day indicating he
had resigned. To the extent there is a factual dispute as to
Spencer's effective resignation date, it is not material. The
commission's analysis, although bolstered by the four-day
timeline, was not contingent upon it.