JEFFREY GODERE v. CITY OF CHICOPEE & 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
22-P-134
JEFFREY GODERE
vs.
CITY OF CHICOPEE & another. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On November 2, 2018, appellant Jeffrey Godere, then a
sergeant in the Chicopee police department, was terminated from
the department for untruthful conduct during an internal affairs
investigation. He appealed his termination to the appellee
Civil Service Commission (commission), which is charged with
deciding whether there was just cause for a disciplinary action
taken against the employee. Just cause is defined in this
context to mean "substantial misconduct which adversely affects
the public interest by impairing the efficiency of the public
service." Doherty v. Civil Serv. Comm'n, 486 Mass. 487, 493
(2020), quoting Police Comm'r of Boston v. Civil Serv. Comm'n,
39 Mass. App. Ct. 594, 599 (1996). The commission conducted an
evidentiary hearing and issued a written decision on February
1 Civil Service Commission.
13, 2020. In that decision, the commission concluded that
Godere's conduct "was a violation of the rules and regulations
of the [Chicopee] Police Department regarding untruthfulness and
constituted substantial misconduct which adversely affected the
public interest." It further concluded, however, that several
factors in the case "warrant[ed] a modification of the penalty
imposed." Accordingly, the commission allowed Godere's appeal
in part, vacated his termination, and demoted him from the rank
of sergeant to the rank of police officer. Godere sought
judicial review in the Superior Court, under G. L. c. 30A, § 14,
arguing that he should not have been punished at all for his
untruthful conduct. 2 A judge of the Superior Court affirmed the
commission's decision, and this appeal followed.
Background. The facts underlying this dispute are well
known to all parties and will not be repeated here in detail.
We summarize the proceedings below and the relevant portions of
the commission's findings of fact. On August 26, 2011, Chicopee
2 The appellee city of Chicopee (city) argued before the Superior
Court judge that the commission erred in modifying the penalty
and that Godere's termination should be reinstated. The city
makes the same argument here. Because the city failed to file a
cross appeal, those arguments are waived. See Saugus v. Refuse
Energy Sys. Co., 388 Mass. 822, 831 (1983), quoting Boston
Edison Co. v. Boston Redev. Auth., 374 Mass. 37, 43 n.5 (1977)
("Although a party may defend a judgment on any ground asserted
in the trial court, failure to take a cross appeal precludes a
party from obtaining a judgment more favorable to it than the
judgment entered below").
2
officers, including Godere, responded to an apartment for a call
of an unresponsive person. A female, determined to be deceased,
apparently as a result of homicide, was discovered on the floor.
Using their cell phones, two officers took a picture of the
female and forwarded the photo to fellow police officers via
individual text messages. At the police station, one of the
officers who took the picture showed Godere the picture. Godere
asked that the officer send him the photo, and after receiving
the photo Godere forwarded the photo to another officer, denoted
in the proceedings below, and to whom we will refer here, as
Officer CL. CL showed the photo to multiple parents at a
sporting event the next day. One month later, the Chicopee
police department was made aware of the incident and
approximately four months later commenced an internal
investigation.
Four officers, including Godere, actively impeded the
internal investigation by lying to the investigator. When asked
about how he had received the photo of the female homicide
victim, Godere responded that he "receive[s] different pictures,
jokes and videos that people send me" and did "not recall who
sent [him] the picture." When asked whether he had sent the
photo of the female homicide victim to anyone else, Godere
responded "[a]gain, I receive different pictures, jokes and
videos on my phone. Some of those pictures, jokes and videos I
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forward to others. I do not recall if I sent this particular
picture to anyone." Both answers were untrue. Godere was
intentionally misleading the investigator because he was
concerned about being a "rat." Eventually, he told the
investigator the truth.
At the conclusion of the internal investigation, three of
the officers, including Godere, were charged with "incompetence"
for "failing to conform to work standards established for the
officers' position." CL was given three tours of punishment
duty; Godere and one other officer received a written warning.
Specifically, Godere was reprimanded for his improper use of a
cell phone during an ongoing investigation. None of the
officers were charged with untruthfulness.
Though the police chief had refrained from disciplining any
of the officers for untruthfulness, he did inform the district
attorney of the incident. The district attorney wrote to the
police chief that "[s]uch lack of honesty is very troubling. In
future court proceedings, I will be ethically obligated, under
mandatory discovery requirements, to produce this material when
relevant to the question of these officers' credibility." On
January 10, 2013, the district attorney issued a "Brady"
memorandum, derived from Brady v. Maryland, 373 U.S. 83 (1963),
to all assistant district attorneys, indicating that when either
Godere or CL was a potential witness in a case, the assistant
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district attorney should determine whether disclosure of the
officer's prior untruthfulness in the internal investigation
would be relevant as exculpatory material. Upon receiving the
"Brady" letter, the chief of police discussed with the mayor the
possibility of additional discipline for Godere and CL. They
decided against it. For four years after the "Brady" letter was
issued, no further administrative action related to the photo
incident was taken against Godere or CL. Godere was not even
made aware of the letter.
In 2017, however, Chicopee had a new mayor and a new chief
of police. Both eventually learned of the existence of the
"Brady" letter, and again the question of additional discipline
arose. This time, the question was answered in the affirmative.
The mayor issued Godere a notice of contemplated discipline, a
discipline hearing was held, and Godere was ultimately
terminated on November 2, 2018. On review, as described at the
outset, the commission modified Godere's penalty, ordering that
Godere instead be demoted from sergeant to police officer.
Discussion. We review the commission's decision to
determine whether "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." Spencer v. Civil Serv. Comm'n,
479 Mass. 210, 215 (2018) (quotation and citation omitted).
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Godere argues that the commission erred in upholding the
decision to discipline him. He argues that the determination
not to discipline him for untruthfulness reached at the end of
the initial internal investigation cannot be revisited years
later by a subsequent administration. He argues that it is
contrary to the purpose of the civil service system to allow the
election of a new mayor or the appointment of a new police chief
to result in the reversal of prior decisions not to discipline a
permanent, tenured civil service employee based upon the same
information that was available to their predecessors.
Of course, "'[t]he fundamental purpose of the civil service
system is to guard against political considerations, favoritism,
and bias in governmental hiring and promotion.' Massachusetts
Ass'n of Minority Law Enforcement Officers v. Abban, 434 Mass.
256, 259 (2001). It also is designed to 'protect efficient
public employees' from partisanship and arbitrary punishment.
Murray v. Second Dist. Court of E. Middlesex, 389 Mass. 508, 514
(1983), quoting Debnam v. Belmont, 388 Mass. 632, 635 (1983).
See Dedham v. Labor Relations Comm'n, 365 Mass. 392, 396-397
(1974)." Fernandes v. Attleboro Hous. Auth., 470 Mass. 117, 123
(2014). But Godere points to no statute, regulation, or
decision that disempowers a newly elected or appointed official
from re-examining a decision of their predecessor not to
discipline a civil service employee even though they act
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otherwise lawfully. Nor does Godere point to any statute of
limitations or other source of law under which discipline for
his untruthfulness came too late.
He argues next that the commission's decision violates
principles of "industrial double jeopardy," see Zayas v. Bacardi
Corp., 524 F.3d 65, 68 (1st Cir. 2008), because the city
penalized him "twice for the same infraction." Id. at 69. But,
assuming what we need not decide, that industrial double
jeopardy principles apply, Godere's invocation of them is
inapposite. He was reprimanded in 2012 for his improper "use of
a cell phone during an ongoing investigation." But he was
terminated in 2018 because he was found to have been untruthful
and to have "impeded th[e] investigation" into his improper use
of the cell phone. These thus are not two punishments for the
"same infraction" or, as he also puts it, quoting Heier v. North
Dakota Dep't of Corrections & Rehabilitation, 820 N.W.2d 394,
399 (N.D. 2012), "one instance of misconduct."
Finally, he argues that he has been treated differently
than two other officers, who were found to have been similarly
untruthful in the internal affairs investigation but have since
been promoted. Godere raised his concerns about unequal
treatment with the commission, which relied upon them in
modifying the penalty. Although we express no opinion on the
propriety of those modifications, see note 2, supra, we have
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observed that the commission's "power to modify penalties
permits the furtherance of uniformity and the equitable
treatment of similarly situated individuals. It must be used to
further, and not to frustrate, the purpose of civil service
legislation, i.e., 'to protect efficient public employees from
partisan political control.' Debnam[,] 388 Mass. [at 635]. It
is not to be used 'to prevent the removal of those who have
proved to be incompetent or unworthy to continue in the public
service.' Cullen v. Mayor of Newton, 308 Mass. 578, 581 (1941)."
Police Comm'r of Boston v. Civil Serv. Comm'n, 39 Mass. App. Ct.
594, 600 (1995). By contrast, Godere points to no case law, and
we know of none, that holds that the department's failure, even
wrongful failure, to discipline officers who committed similar
improper acts grants an officer immunity from a commission
determination that there was just cause for disciplinary action
against him.
As the commission decision was supported by substantial
evidence, and Godere has shown neither legal error nor that the
decision was not in accordance with law, the judgment of the
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Superior Court affirming the decision of the commission will be
affirmed.
Judgment affirmed.
By the Court (Meade, Rubin &
Blake, JJ. 3),
Clerk
Entered: August 9, 2023.
3 The panelists are listed in order of seniority.
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