GREGORY LEWANDOWSKI v. CIVIL SERVICE COMMISSION & Another. ( 2023 )

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
21-P-1096
GREGORY LEWANDOWSKI
vs.
CIVIL SERVICE COMMISSION & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a Superior Court judgment
affirming the decision of the Civil Service Commission
(commission) which, in turn, affirmed the town of Charlton's
(town or Charlton) termination of the plaintiff's employment in
the Charlton Police Department (CPD). The plaintiff primarily
argues that he was deprived of due process because the stated
reasons for his termination were pretextual, and because his
firing was instead motivated by personal animus or bias against
him. He also contends that the commissioner who presided over
the hearing should have reviewed, in camera, evidence over which
the town claimed the attorney-client privilege. We affirm.
1 Town of Charlton.
Background. Prior to his termination, the plaintiff served
on the CPD during two relevant periods. He first served as a
part-time auxiliary police officer from July 2002 to December
2003. After a brief stint at another police department, the
plaintiff rejoined CPD as a full-time officer in September 2005.
The plaintiff was promoted to lieutenant in July 2013, and
served in that role until his termination in October of 2018.
The plaintiff's termination followed a months-long
investigation, the impetus of which was the plaintiff's receipt
of a so-called "longevity payment" in November 2017. As
relevant here, the town once paid "longevity payments" to
eligible CPD employees under a collective bargaining agreement
(and a later memorandum of understanding) (collectively, CBA)
between the town and the Charlton Police Alliance. As of July
2016, the CBA provided for once-yearly payments of $200 to full-
time employees who had reached ten years of service. The yearly
payments increased if the employee reached additional longevity
milestones -- e.g., to $400 after fifteen years of service, and
to $1,000 after twenty. Under this structure, the plaintiff
received his first $200 longevity payment in July 2016, and his
second in July 2017.2
2 Although the CBA did not entitle lieutenants to longevity
payments, the plaintiff received such payments based on CPD
practice.
2
In October 2017, the town added a new bylaw providing for
yearly longevity payments to "any eligible employee," defined as
"[o]ne who is currently employed by the [t]own and who is
regularly scheduled to work a minimum of twenty . . . hours per
week."3 As a result, in November 2017 the town's assistant human
resources director circulated a "longevity chart" to a group of
town employees (including the plaintiff), listing each eligible
employee's start date, length of service, and the payment they
were due that year. The chart listed the plaintiff's start date
as July 2002 (when he started as a part-time auxiliary officer)
and showed that he was due a $200 payment based on fourteen
years of service. The plaintiff thereafter received a $200
longevity payment in November 2017, his second of that year.
In December 2017, CPD Chief Graham Maxfield discovered that
the plaintiff had received two longevity payments in 2017, and
asked the plaintiff for an explanation. The plaintiff claimed
that he received the second payment because he had reached an
anniversary with the town. In a subsequent written response
(which Chief Maxfield had directed the plaintiff to provide),
the plaintiff explained that he had received his first ten-year
longevity payment in July 2016, that "the town had [him]
3 Under the 2017 bylaw, the ten-year and fifteen-year payments
remained $200 and $400, respectively. Unlike the CBA,
lieutenants were covered by the bylaw. See note 2, supra.
3
reaching [his] fifteen . . . year" anniversary in July 2017, and
that he believed the November 2017 payment "was an adjustment"
for hitting that milestone. This confused Maxfield, who did not
understand how the plaintiff was eligible for a fifteen-year
payment in July 2017, when he had received his first ten-year
payment the prior year. After further inquiry, Maxfield learned
that the plaintiff had not begun his full-time service with CPD
until 2005, prompting him to ask the plaintiff how he had
learned that he had reached his fifteen-year anniversary. The
plaintiff pointed to the longevity chart, which showed fourteen
(not fifteen) years of service.
Also in December 2017, the plaintiff sought and obtained
forty additional hours of vacation time based on the 2002 start
date shown in the longevity chart -- in the process representing
to Maxfield (in response to Maxfield's question) that he had
been at the CPD for fifteen years. Around that same time, the
plaintiff contested the results of an audit of his available
sick leave time, contending that his own audit showed that he
had 1,186 hours available, not 904 hours as the town contended.
Although Maxfield initially accepted the plaintiff's number, the
town subsequently discovered that the plaintiff's audit had not
accounted for sick days that the plaintiff had taken between
2005 and the beginning of July 2008. Sick leave taken before
July of 2008 was not recorded in the town's computer system, but
4
only in physical books -- a fact of which the plaintiff was
aware due to his oversight of prior CPD sick leave audits.
Eventually, in reviewing the circumstances that led to the
plaintiff's November 2017 longevity payment, Maxfield learned
that the plaintiff's start date in the longevity chart
corresponded with his part-time auxiliary service, and not when
he began as a full-time officer. Maxfield accordingly directed
the plaintiff to remedy the extra longevity payment and
increased vacation time with the human resources department.
While the plaintiff asked the human resources department to
deduct forty hours of vacation time, he did not raise the
longevity payment. Maxfield subsequently learned that the
plaintiff's service to the town had not been continuous -- that
is, there was a gap between his service as a part-time auxiliary
officer and when he was rehired full-time. Believing that the
plaintiff had deliberately misled him, Maxfield resolved to
investigate the matter further, and placed the plaintiff on
administrative leave in April 2018.
In September 2018, after Maxfield had completed his
investigation, there was a disciplinary hearing before a hearing
officer appointed by the town. Based on the hearing officer's
recommendations, the town's board of selectmen voted to
terminate the plaintiff for just cause, citing, among other
things, his improper receipt of two longevity payments in 2017;
5
his knowing use of an incorrect hire date to secure additional
vacation time; his intentional inflation of accrued sick leave;
and his lack of candor during the investigation.
The plaintiff appealed the town's decision to the
commission pursuant to G. L. c. 31, § 43, and a hearing was held
before a commissioner. The plaintiff argued that his
termination was the product of disparate treatment, pointing to
other town employees, including Maxfield, who had received
inflated longevity payments but who were not fired. The
plaintiff also argued that the investigation and his ultimate
termination were motivated by personal animus and bias, and that
the investigation was intended to manufacture a pretext to
accomplish his termination.4 The plaintiff claimed that Maxfield
had a personal animus toward him because, over a decade earlier,
the plaintiff had reported to a prior CPD chief that Maxfield,
then a sergeant, was encouraging auxiliary officers to refuse
paid details to show solidarity with the police union.
The commission affirmed the town's decision as supported by
just cause under G. L. c. 31, § 43. The commission found that
4 The plaintiff argued that an e-mail between Maxfield and town
counsel -- which the town withheld as privileged -- would have
evidenced the pretextual nature of the investigation. Maxfield
sent the e-mail on the day that he placed the plaintiff on
leave, referencing in a separate e-mail to the town
administrator and human resources director that he had
"forwarded" to town counsel a copy of the letter placing the
plaintiff on leave.
6
the evidence failed to show that the plaintiff's termination was
pretextual, or motivated by animus or bias. The commission also
concluded that, although the plaintiff's acceptance of the
second 2017 longevity payment did not alone support his
termination, the plaintiff's additional conduct -- including his
efforts to obtain extra vacation time, his attempts to secure
inflated sick leave, and his lack of candor -- justified the
town's decision. A judge of the Superior Court affirmed the
commission's decision, and this appeal followed.
Discussion. On appeal, the plaintiff primarily contends
that he was unconstitutionally deprived of his employment
without due process of law. The plaintiff does not challenge
the commission's findings directly, but rather urges that the
town's investigation, and decision to fire him, was borne of
personal animus and thus, allegedly, deprived him of a
meaningful opportunity to be heard. The plaintiff also argues
that the hearing commissioner erred by not reviewing in camera
an e-mail between Maxfield and town counsel concerning the
plaintiff's administrative leave, as to which the town claimed
attorney-client privilege. We review the commission's decision
under G. L. c. 31, § 44. Accordingly, the decision "will be
upheld unless it is 'unsupported by substantial
evidence[,] . . . arbitrary or capricious, an abuse of
discretion, or otherwise not in accordance with the law.'"
7
Boston Police Dep't v. Civil Serv. Comm'n, 483 Mass. 461, 469
(2019), quoting G. L. c. 30A, § 14 (7). "This standard of
review is highly deferential to the agency on questions of fact
and reasonable inferences drawn therefrom" (citation omitted).
Brackett v. Civil Serv. Comm'n, 447 Mass. 233, 242 (2006).
As to the plaintiff's due process argument, we agree that
"[t]enured civil servants," such as the plaintiff, "have a
property interest in their employment, and must be afforded
basic due process protections in . . . disciplinary proceedings"
(citation omitted). Worcester v. Civil Serv. Comm'n, 87 Mass.
App. Ct. 120, 124 (2015). Those "[c]onstitutional safeguards
require" that a person in the plaintiff's position receive (1)
notice of the charges against him, (2) (generally), a
pretermination hearing, (3) "an explanation of the [town]'s
evidence," and (4) "an opportunity . . . to present [his] side
of the story." Id. at 124-125. He is also entitled to an
impartial hearing. See Harris v. Board of Trustees of State
Colleges, 405 Mass. 515, 521 (1989). Here, the plaintiff has no
argument as to the fairness of the adjudicatory process itself;
the plaintiff does not (and cannot) complain that he was
deprived of notice, of a pretermination hearing, or of an
explanation of the town's evidence -- nor does the plaintiff
challenge the impartiality of the hearing or the commissioner.
Instead, the thrust of the plaintiff's argument appears to be
8
that the process was necessarily "tainted" by a "purely
pretextual" investigation that was motivated by animus and bias.
We do not agree that due process was not afforded here.
To begin, the plaintiff's due process theory is based on
the questionable premise that a biased investigation necessarily
amounts to a due process violation. The plaintiff cites no case
for this proposition, and there is some case law to the
contrary. See Gonzalez-Droz v. Gonzalez-Colon, 660 F.3d 1, 15
(1st Cir. 2011) ("investigat[or] . . ., unlike a decisionmaker,
does not have to be neutral").5 But in any event, here the
plaintiff was able to argue before the commission that the
investigation and his termination were motivated by bias and
animus, and that the stated reasons for his termination were
pretextual. He thus had ample opportunity to "present [his]
side of the story" (citation omitted). See Worcester, 87 Mass.
App. Ct. at 125. The commission rejected those arguments on the
facts, concluding that the evidence failed to show that the
termination was "based on any . . . bias" or that the
investigation was "a pretext to bring about the [plaintiff's]
termination." The commission found, to the contrary, that the
termination was based upon the plaintiff's multiple instances of
5 Although an investigator's bias might give rise to rights under
State law, see Cambridge v. Civil Serv. Comm'n, 43 Mass. App.
Ct. 300, 304 (1997), the plaintiff does not press such an
argument on appeal.
9
untruthfulness. We give deference to such factual findings,
Brackett, 447 Mass. at 242, which the plaintiff does not
challenge as unsupported by the evidence. See Matter of
Eisenhauer, 426 Mass. 448, 453-454 (1998) (no due process
violation absent evidence of biased decisionmakers).
This result is unaffected by the plaintiff's contention
that he was subject to "inequitable treatment among similarly
situated individuals" -- that is, other employees also received
improper longevity payments but were not fired. Here again, the
plaintiff made this argument to the commission, which found that
the plaintiff was "distinguish[able]," because "the record d[id]
not show that those other employees engaged in multiple
instances of untruthfulness," whereas the plaintiff took several
actions that "called into question his honesty" and that
"appeared designed to obfuscate." Given those findings, there
is no "basis to believe that the discharge penalty unfairly
singled out [the plaintiff] for punishment more harsh or unusual
than otherwise imposed in like circumstances." Police Comm'r of
Boston v. Civil Serv. Comm'n, 39 Mass. App. Ct. 594, 601 (1995).
See Moore v. Executive Office of the Trial Court, 487 Mass. 839,
850 (2021).
In a related argument, the plaintiff contends that the
hearing commissioner erred by not reviewing, in camera, an e-
mail that Maxfield sent to town counsel. The plaintiff argues
10
that the e-mail either was not privileged, or was subject to a
privilege exception, and that the e-mail would have supported
his pretext argument. The town argues, and a judge of the
Superior Court concluded, that the commissioner did not err by
not reviewing the document. We agree.
The plaintiff requested the e-mail during prehearing
discovery, apparently learning of its existence through review
of a separate communication. The town did not produce the e-
mail, and the commissioner denied the plaintiff's motion to
compel its production. The plaintiff nonetheless renewed his
request during the hearing. Outside counsel for the town
represented that he had reviewed the e-mail, and expressed his
belief that it was privileged.6 Plaintiff's counsel asked the
commissioner to review the document in camera, but the town
objected. Plaintiff's counsel then responded: "If you don't
want to supply the document, then we're entitled to an adverse
inference." The commissioner then stated, before taking the
matter under advisement:
"Why don't you think about it and whether or not you want
to have an in camera review. Take that in consideration of
whether you want to do an in camera review or not. I don't
know whether it's a big deal or not. But think about it,
and then let me know, and I'll make a decision on it
later."
6 Outside counsel was not the "town counsel" to whom Maxfield
sent the e-mail in question.
11
The issue was not raised again at the hearing. In the
plaintiff's posthearing submission (a draft "proposed
decision"), the plaintiff noted his request to review the e-
mail, but ultimately proposed that the commission "draw [an]
adverse inference . . . that the evidence if produced would be
prejudicial to the [t]own."
Under the circumstances, the plaintiff waived the argument
he now pursues. See Carey v. New England Organ Bank, 446 Mass.
270, 285 (2006) (issues not argued below waived on appeal).
Although the plaintiff initially requested an in camera review,
after discussion the commissioner left to the plaintiff whether
he wanted to pursue the argument. The plaintiff did not follow
up. Although it is true that the plaintiff's posthearing
submission noted the request for in camera review, the plaintiff
did not propose any resolution other than asking for an adverse
inference. Where this was the plaintiff's only follow up to the
12
commissioner's clear direction, the commissioner cannot be
faulted for not reviewing the e-mail.7
Judgment affirmed.
By the Court (Rubin,
Englander & Brennan, JJ.8),
Clerk
Entered: June 1, 2023.
7 We also note that the plaintiff has marshalled no evidence
supporting his theory that the e-mail evidenced pretext. Under
the circumstances, asking for an adverse inference may well have
been a strategic choice. The plaintiff and his counsel may have
thought the better course was to ask for an adverse inference,
rather than risk the possibility that in camera review would
result in nothing -- or actually harm the plaintiff's case.
8 The panelists are listed in order of seniority.
13