A Massachusetts Appeals Court recently upheld the suspension of a Massasoit Community College (MCC) Police Officer’s Special State Police Officer warrant by the Colonel of the State Police. MCC Police Officer David Bickford’s warrant was suspended by the State Police in 2006 during the investigation into his performance as armorer of the MCC Police Department. The State Police began their investigation after Bickford reported that a MCCPD pistol and three to five ammunition magazines were missing from his locker upon his return from a three month disability leave. The subsequent investigation revealed
“…a host of other problems with Bickford’s performance as armorer. Specifically, the investigation showed that in the year 2000, he participated in taking a personal firearm from MCCPD Sergeant Ann Holland’s desk drawer to “secure it” without telling her he had done so. In violation of protocol, he did not report the incident to the MCCPD chief, and instead kept the weapon for an extended period because, according to his testimony at the administrative hearing, he “forgot about it.” The investigation further revealed that due to Bickford’s substandard record-keeping, at least one additional MCCPD firearm was missing. In fact, at one point, Bickford lost his firearms log book and did not find it for at least three years, a period during which he completely stopped keeping a firearms log of any kind. (2) Bickford initially responded to all questions posed to him during the investigation, but later, after consulting with his attorney, declined to submit to a polygraph examination and to further interviews without the presence of his attorney.
On July 19, 2006, the commander of the State police certification unit sent the MCCPD chief a letter suspending Bickford’s SSPO warrant pending the outcome of certain criminal complaints and completion of the ongoing investigation into Bickford’s suitability to serve as an SSPO. The letter said that Bickford had “not been cooperative in the investigation,” noted the missing weapons, and also noted the incident with Sergeant Holland’s firearm. In August, 2006, Bickford appealed the suspension and sought a hearing pursuant to G. L. c. 22C, § 43.(3) The hearing was held, and thereafter, a hearing officer issued a comprehensive report in which he found, among other things, that two firearms last seen in Bickford’s custody were missing and could not be found. That finding accompanied other findings regarding Bickford’s deficient performance, two of which were that Bickford had “refused to cooperate with a criminal investigation and knowingly disregarded his law enforcement responsibilities and duties” and that he had “grossly neglected his duties and responsibilities as the armorer of the [MCCPD] by failing to accurately maintain Firearms Log records, fail[ing] to accurately record the issuance and retrieval of Department weapons, and fail[ing] to safely secure weapons.” For those reasons, the examiner recommended that Bickford’s suspension be affirmed. After the State police colonel accepted the recommendation and suspended Bickford’s warrant, MCCPD put him on indefinite leave.”
On appeal, Bickford claimed that the Superior Court judge erred in failing to remand the matter for a new hearing after determining that the State police hearing officer committed an error of law by listing Bickford’s failure to cooperate as one of the grounds for his suspension. Bickford also claimed the judge should not have concluded that Bickford received sufficient notice of the nature of the charges to be addressed at the hearing.
The Court found that the State Police hearing officer did make an error of law by citing Bickford’s failure to cooperate with the investigation as grounds for the decision to suspend Bickford’s warrant. However in Carney v. Springfield, 403 Mass. 604, 608-610 (1988) the Supreme Judicial Court found that “public employees cannot be discharged simply because they invoke their privilege under the Fifth Amendment to the United States Constitution not to incriminate themselves in refusing to respond to questions propounded by their employers”; “art. 12 of the [Massachusetts] Declaration of Rights requires transactional immunity to supplant the privilege against self-incrimination, even in the context of public employment”.
The Court did not agree with Bickford’s contention that the mistake of law committed by the hearing officer vitiates the administrative proceeding and requires a remand for a new, error free administrative proceeding. According to Massachusetts case law, “[t]he appealing party [, Bickford] has the burden of showing that his ‘substantial rights . . . may have been prejudiced’ by the agency’s error.” Catlin v. Board of Registration of Architects, 414 Mass. 1, 6 (1992). The Appeals Court stated that
“[t]he administrative findings regarding Bickford’s role in the disappearance of Sergeant Holland’s weapon and his grossly deficient approach to record-keeping, an approach that led to the disappearance of two police firearms, have substantial evidentiary support in the record and, by themselves, provide compelling reasons for suspension of his warrant. We have no doubt that his warrant would have been suspended even if he had cooperated in the investigation or if his lack of corporation had not been counted against him.”
When an agency decision rests on both a legitimate and an illegitimate basis, a court may still uphold the decision if it is clear that, disregarding the illegitimate basis, the agency would have made the same decision. United Food Corp. v. Alcoholic Bevs. Control Commn., 375 Mass. 238, 245 (1978).
As to Bickford’s contention that he did not receive sufficient notice of the nature of the charges leveled against him, the court found that a letter notifying Bickford of the hearing included an investigative report discussing “Bickford’s record keeping practices in extensive detail”. The Appeals Court agreed with the Superior Court judge who found that the “clear and expansive” language in the notice of hearing gave Bickford ample notice that “all incidents of his conduct pertaining to his suitability to act as a police officer were . . . fairly on the table” and that the specific discussion of his record-keeping practices in the materials enclosed with the notice highlighted the significance of record-keeping.