Civ. Serv. Comm'n, No

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Commonwealth of Massachusetts Superior Court CIVIL ACTION MIDDLESEX, ssNov 17, 1995
No. 94-3680-D (Mass. Cmmw. Nov. 17, 1995)

No. 94-3680-D

November 17, 1995


The City of Cambridge appeals the Civil Service Commission's decision reversing the City's "by-pass" of intervenor Leslie Langston for appointment as a Cambridge police officer. Judicial review is provided under G.L.c. 30A, § 14 and G.L.c. 31, § 44. For the reasons stated below, the Commission's decision is affirmed.


Intervenor Leslie Langston ("Langston") was certified for appointment as a police officer for the City of Cambridge ("the City") on December 29, 1992. During its subsequent background investigation, the City learned that in 1984 Langston falsely accepted responsibility in court for firing a shotgun within five hundred feet of a dwelling. After being found guilty, placed on probation and fined fifty dollars, Langston returned to court and informed the judge that her boyfriend had fired the shotgun. As a result, the judge reversed Langston's conviction and sealed her record.

The City also discovered that on May 18, 1989, a complaint for assault and battery was filed against Langston. In turn, Langston had filed a cross complaint on the same grounds. The actions arose from a dispute regarding Langston's son and a male acquaintance. After mediation, the actions were dismissed on July 25, 1989.

On April 29, 1993, the City requested that the state Department of Personnel Administration ("the Department") approve by-pass of Langston for appointment as a police officer. In accordance with G.L.c. 31, § 27, the City submitted a statement with reasons for the by-pass to the Personnel Administrator for the Department ("the Administrator"), citing the 1984 and 1989 incidents. The Administrator approved Langston's by-pass on February 16, 1994.

Langston subsequently filed an appeal pursuant to G.L.c. 31, § 2(b), and a hearing was held before a Commissioner of the Civil Service Commission ("Commission"). The Commissioner's findings were adopted by the Commission and incorporated into its final decision and order dated May 24, 1994.

The Commission found that, from 1987 through 1990, Langston worked as a full-time employee for Harvard University Health Services; that, since 1990, she has been employed as a full-time secretary in the Surgical Department at Cambridge City Hospital and continues to work for Harvard University Health Services on a part-time basis; and that, from May 1993 to the present, she has also worked part-time at Communities for People, a residential setting for troubled teens.

The Commission determined that the reasons offered by the City in support of its by-pass decision were outweighed by Langston's "exemplary" employment record, evidenced by numerous letters of recommendation from her employers. Characterizing the 1984 criminal charge as stale, the Commission also found that the City's assertion that Langston lied under oath was unsubstantiated. The Commission accepted Langston's explanation of the 1989 incident, and determined that the incident was not a justifiable basis for the by-pass. The Commission noted that the City should have given consideration to Langston's character over the previous seven years, rather than focusing exclusively on the two incidents. Accordingly, the Commission reversed the Administrator's decision approving the City's by-pass, and ordered the revival of Langston's eligibility and, if necessary, the placement of her name at the top of the next certification for police officer. The City appeals that reversal.


The party appealing an administrative decision bears the burden of demonstrating the decision's invalidity. Merisme v. Board of Appeals on Motor Vehicle Liab. Policies Bds., 27 Mass. App. Ct. 470, 474 (1989); Faith Assembly of God v. State Bldg. Code Comm'n., 11 Mass. App. Ct. 333, 334 (1981), citing Almeida Bus Lines, Inc. v. Department of Pub. Utils., 348 Mass. 331, 342 (1965). In reviewing the agency decision, the court is required to give due weight to the agency's experience, technical competence, specialized knowledge, and discretionary authority. G.L.c. 30A, § 14; Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992); Seagram Distillers Co. v. Alcoholic Beverage Control Comm., 401 Mass. 713, 721 (1988); Quincy City Hosp. v. Labor Relations Comm'n., 400 Mass. 745, 748-749 (1987).

The court's review is confined to the record, except in cases of irregularities. The court may affirm the decision of the agency, remand the matter for further proceedings, or set aside or modify the decision if it determines that the substantial rights of a party may have been prejudiced because of an error of law, or that the decision is unsupported by substantial evidence, is unwarranted by facts found in the record, or is arbitrary, capricious or an abuse of discretion. G.L.c. 30A, § 14. "Substantial evidence" is what a reasonable mind might accept as adequate to support a conclusion, Deacon Transportation, Inc. v. Department of Public Utilities, 388 Mass. 390, 395 (1983), and a court will not substitute its judgment for that of the agency when there is "substantial evidence." See Boston Edison Company v. Boston Redevelopment Authority, 376 Mass. 151, 154 (1978).

The Commission has the authority to review the decision of the Administrator pursuant to G.L.c. 31, § 2(b). In an appeal hearing before the Commission, the appointing authority (the City) bears the burden of proving by a preponderance of the evidence that there was just cause for the decision. Gloucester v. Civil Service Commission, 408 Mass. 292, 297 (1990), Mayor of Revere v. Civil Service Commission, 31 Mass. App. Ct. 315, 321 (1991). If the appointing authority fails to meet its burden, the Commission has the authority to reverse the decision. Id.

1. Standard of Review

The City argues that the Commission, instead of applying the preponderance of the evidence standard of review required by G.L.c. 31, § 2(b), erroneously applied an arbitrary and capricious standard, and thereby exceeded its authority.

The Commission expressly acknowledges in its decision that its review is pursuant to G.L.c. 31, § 2(b). Administrative Record ("A.R.") at 4. The Commission considers both Langston's work experience and the 1984 and 1989 incidents, "weighing" the appointing authority's concerns against evidence to the contrary. A.R. at 3. In these circumstances, the Court interprets the Commission's conclusion that the by-pass was "arbitrary and capricious" to mean that it also did not satisfy the lower standard of proof by a preponderance of the evidence. The Court therefore concludes that the Commission applied the proper standard of review.

2. Abuse of Discretion/Errors of Law

The City also contends that the Commission abused its discretion and committed errors of law by considering and relying on certain evidence.

As noted above, the Commission could reverse the Administrator's decision only upon a finding that that decision was not based upon a preponderance of the evidence in the record. This Court may set aside the Commission's decision if it determines that the decision was, inter alia, based upon an error of law or an abuse of discretion. G.L.c. 30A, § 14. "The Court shall give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred on it." Id.

The "errors of law" cited by the City are the Commission's conclusion that the City based the by-pass on "stale" prior criminal proceedings; the Commission's reliance on the outcome of those proceedings; the Commission's reliance on the sealing of Langston's criminal record; and the Commission's reliance on Langston's work history.

The Court does not agree that the Commission based its decision on any error of law. Rather, the Court concludes that the Commission was doing what it concluded the City had not: weighing the evidence to determine whether a preponderance of the evidence could be found to support the City's decision. Because it found that the City had not considered all of the evidence relating to the prior criminal incidents, not to mention Langston's subsequent employment history, the Commission concluded that the City's decision not only was unsupported by a preponderance of the evidence, but was arbitrary and capricious as well. Measuring the Commission's decision against the requirements of G.L.c. 30A, § 14, and giving due deference to the Commission's "experience, technical competence and specialized knowledge," id., the Court cannot conclude that the Commission based its decision on an error of law or an abuse of discretion.

3. Substantial Evidence

Finally, the City claims that the Commission's decision was not supported by substantial evidence in the record. The City alleges that the Commission "ignored Cambridge's reasons [for the by-pass], looked at other aspects of Langston's past behavior not in dispute and decided to substitute its own judgment for that of the appointing authority." Plaintiff's Brief at 6. In particular, the City cites the Commission's consideration of Langston's work history.

The Commission acted within its discretion when it considered the recommendations of Langston's past and present employers in addition to the evidence relied upon by the City. See A.R. at 2-3. Applying a preponderance of the evidence standard of review to the evidence presented, the Commission concluded:

The statutory law offers agencies some degree of evidentiary latitude in administrative hearings. For example, c. 30A, § 11(2) provides that ". . . agencies need not observe the rules of evidence observed by courts . . . ." C. 30A, § 11(4) states that "[a]ll evidence, including any records, investigation reports, and documents in the possession of the agency of which it desires to avail itself . . . shall be offered and made a part of the record in the proceeding . . ." The City has not moved to strike any portion of the record on appeal as not being properly before the Commission.

We believe that [Langston's] work history from 1987 to 1994 out-weighs the concerns voiced by the Appointing Authority as a result of incidents in 1984 and 1989. If any individual deserves a second chance, it is surely the Appellant.

A.R. at 4. The resulting decision of the Commission was based upon substantial evidence.


For the reasons stated above, the decision of the Civil Service Commission is hereby AFFIRMED.

Stephen E. Neel Justice of the Superior Court

Dated: November 17, 1995