DocketNumber: No. 04-P-1756
Citation Numbers: 65 Mass. App. Ct. 266
Judges: Brown, Graham
Filed Date: 12/7/2005
Status: Precedential
Modified Date: 6/25/2022
The board of fire commissioners (board) for the city of Fall River (city) voted to terminate the employment of Peter Sisca, a Fall River fire fighter, for his “unauthorized absence” from his job. See G. L. c. 31, § 38, inserted by St. 1978, c. 393, § 11.
From a summary judgment entered in favor of the defendants, Sisea and the union bring this appeal. They principally contend, among other claims, that § 38 is inapplicable to the instant circumstances. We disagree and affirm the Superior Court judgment.
Background. As of March of 2003, Sisea was employed by the Fall River fire department (department) and was a member of the union. The board was (and remains) the appointing authority for the department.
On March 9, 2003, Sisea notified the department that he was ill and would not be present for duty. Between March 9 and March 20, 2003, Sisea remained absent from work, and during this period of time he periodically telephoned the department to report that he remained ill and would not be at work.
On March 20, because Sisea’s absence from his job had by then exceeded one week’s time, the deputy chief of the department spoke to Sisea over the telephone, reminding Sisea to adhere to the department’s protocol governing work absences and directing him to meet with the department’s physician the following day (March 21) for an examination. As to the latter directive, Sisea indicated he would not be able to do so.
Sisea also informed the department that he had a scheduled appointment with another doctor (Dr. Richard Tosi) on April 9. Sisea met with Dr. Tosi on that date. Apparently Dr. Tosi cleared Sisea to return to his fire fighter job on April 9; however, Sisea did not report for duty that day. No other particulars respecting this medical examination are disclosed in the record.
On April 15, the board held a hearing. The fire chief had recommended that the board terminate Sisea’s employment for the reason that he had been absent without leave for a period of more than fourteen days. In a memorandum to the board, the fire chief pointed out that, during the time in question, Sisea neither had been granted a leave of absence (see G. L. c. 31, § 37), nor had he asked to use available sick leave, consistent with the governing protocol for exercising such leave.
The board accepted the fire chief’s recommendation and voted in favor of terminating Sisea’s employment immediately.
By a letter from his counsel, Sisea timely requested such a hearing, and forcefully disputed the board’s authority to act as it did under the provisions of § 38. In that letter, no assertion or suggestion was made, however, that accrued vacation or sick leave ought to be applied to cover Sisea’s absence.
The board held a hearing on July 10, 2003. Sisea appeared with his counsel. Testimony was offered and other evidence was presented.
As is his right, Sisea sought review of the board’s action from the personnel administrator for the Commonwealth. See G. L. c. 31, § 38. The personnel administrator solicited from
Sisea and the union then commenced an action in the Superior Court, seeking declaratory relief pursuant to G. L. c. 231 A,
The judge concluded there was no doubt Sisea had been absent from his employment for more than fourteen days, without providing notice to the department, which conduct fell within the ambit of the definition of “unauthorized absence” in § 38; the judge also ruled there was substantial record evidence to support the personnel administrator’s determination that Sis-ea’s failure to give notice had not been reasonable in the circumstances. Thus, the judge concluded, there was no basis to disturb the finding of the personnel administrator. We concur.
Discussion. General Laws c. 31, § 38, defines the process and permissible grounds for an appointing authority to terminate the employment of an employee due to an “unauthorized absence,” that is, an absence from work for a period of more than fourteen days for which no notice has been given the appointing authority by an employee, and which may not be charged to available sick or vacation leave, or for which no leave was granted pursuant to G. L. c. 31, § 37.
If a report of an unauthorized absence is issued, § 38 makes it clear that, unless the appointing authority restores the employee to his particular position, or grants leave under § 37, then the employee may seek review from the Commonwealth’s personnel administrator. There is no right of review or opportunity to secure relief from the civil service commission by way of any procedure that is set forth in G. L. c. 31, §§ 41-45. See Canney v. Municipal Ct. of Boston, 368 Mass. 648, 654 (1975)
As happened here, pursuant to § 38 and upon receipt of the written notice from the board, Sisea properly requested a hearing before the board (i.e., the appointing authority). No leave of absence was asked for by him, or granted sua sponte by the board. After hearing, the board voted to keep in place the job termination due to Sisea’s unauthorized absence from work. At no time has Sisea raised any issue respecting the adequacy of the board’s written notices to him, nor has he made any claim that he was deprived a fair and reasonable opportunity to present his side of the story at the § 38 hearing before the board.
Section 38 expressly provides that review by the personnel administrator shall be limited to a determination whether an employee “failed to give proper notice of the absence to the appointing authority and whether the failure to give such notice was reasonable under the circumstances.” G. L. c. 31, § 38, third par. See Police Commr. of Boston v. Personnel Administrator of the Dept. of Personnel Admn., 39 Mass. App. Ct. 360, 362 (1995), S.C., 423 Mass. 1017 (1996). Here, the personnel administrator adhered to the mandate of § 38, and, on the evidence available to her, found adversely to Sisea, that he had not provided proper notice to the appointing authority and that his failure to do so had not been reasonable under the given circumstances. We concur with the judge’s ruling that there was substantial evidence in the administrative record to support this determination.
Sisea and the union contend that, so long as an employee has
The reading of § 38 offered by Sisea and the union, if accepted, would undoubtedly put a fire or police department in a highly untenable and perilous position if its employees could unilaterally decide not to report for duty on any given work day (or string of days), without notice, relying on an unspoken assumption that available sick or vacation leave can be exercised merely on a whim. Such a method of operation is wholly at odds with the language of § 38 and its underlying policies, and surely would only produce absurd results if ever put into place. See EMC Corp. v. Commissioner of Rev., 433 Mass. 568, 574 (2001), quoting from State Tax Commn. v. La Touraine Coffee Co., 361 Mass. 773, 778 (1972) (statute must be construed as “ ‘a consistent and harmonious whole, capable of producing a rational result consonant with common sense and sound judgment”). See also Roberts v. Enterprise Rent-A-Car Co. of Boston, 438 Mass. 187, 195-196 (2002). We think the interpretations reached by the personnel administrator and the judge constitute a sound and sensible reading of the terms of § 38 which “comport[] with the canons that interpretation should tend to preserve the substance of a statute rather than diminish
Judgment affirmed.
General Laws c. 31, § 38, provides: “For the purposes of this section, unauthorized absence shall mean an absence from work for a period of more than fourteen days for which no notice has been given to the appointing
Sisca never provided the department or the board with any documentation or other record from Dr. Tosi as to this April 9 visit.
The city contends the fire chief spoke to Sisea on April 14, informing him the matter of his continued absence was being presented to the board.
The board asserts Sisea appeared at the April 15 hearing with his counsel. There is no credible evidence (apart from this conclusory allegation) in the administrative record to confirm this fact one way or the other.
A transcript of the hearing was furnished to the personnel administrator for review; the same was not included in the record materials filed with this court.
The personnel administrator found that, during the entire time period when Sisea was absent from work, he never “telephoned in to make a progress report as required under the terms of the Collective Bargaining Agreement and the Executive Order”; that Sisea “made no effort to submit any medical documentation” as to his absence, prior to April 12 when he allegedly discovered the fire chiefs desire to talk to him about his absence; that, following Dr. Tosi’s clearance, Sisea never contacted the department to inform officials of his ability to return to work; that he failed to return to work on April 10, “but still managed to make it in to pick up a paycheck on Saturday, April 12th”; and that Sisea “refused to submit to a physical examination by Dr. Vaillancourt, the doctor designated by the [department], as provided for in the Collective Bargaining Agreement.”
It also bears mention that the personnel administrator deemed it significant that Sisea, at two separate hearings in this matter, gave very different reasons for not reporting to duty on April 10. First, the personnel administrator noted, at a hearing before the board, Sisea “attributed his continued absence to psychological trauma brought on by watching news reports of the second Gulf war.” Less than two months later, however, at a hearing before the Division of Employment and Training, with respect to benefits for his separation from the department, he “attributed his absence to his child having to undergo emergency surgery.”
In this particular factual and procedural context, it was open to the plaintiffs to seek such relief. See Canney v. Municipal Ct. of Boston, 368 Mass. 648, 652-656 (1975). Compare the distinguishable (and much more typical) situation presented in Bielawski v. Personnel Administrator of the Div. of Personnel Admn., 422 Mass. 459, 464 n.11 (1996), where the court observed that declaratory relief cannot be used as a substitute remedy for an action in the nature of a writ of certiorari to review the merits of a decision made by the civil service commission.
The court in Canney v. Municipal Ct. of Boston, 368 Mass. at 651, stated: “The Legislature has clearly differentiated unauthorized absence from other
While acknowledging Sisea has a different view of the situation, we are mindful of the principle that “[a] court may not displace an administrative board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de nova.” Police Commr. of Boston v. Personnel Administrator of the Dept. of Personnel Admn., 39 Mass. App. Ct. at 363, quoting from Labor Relations Commn. v. University Hosp., Inc., 359 Mass. 516, 521 (1971).
Nor would the procedure as theorized by Sisea and the union be consistent with the governing collective bargaining contract, which requires that an employee’s absence because of illness or injury be supported by satisfactory evidence for sick leave to be granted.