Civil Service overturns firing of Worcester police officer for refusing to testify at disciplinary hearing

The Appellant, Leon Dykas, pursuant to G.L. c. 31, § 43, filed an appeal with the Civil Service Commission on September 24, 2009 claiming that he was aggrieved by a decision of the City of Worcester to terminate him from his position as a patrol police officer for failure to testify at a Chapter 31 § 41 hearing.

Prior to an August 14, 2009 hearing, the Appellant’s attorney, Kevin Buck, asked the City’s attorney for certain documents and a list of witnesses that the City expected to call. On August 12, 2009, the City’s attorney, Leo Peloquin, sent the documents and a letter that included the following statement, “I anticipate calling Gina Genatossio and Toby Lauder and, possibly, Sgt. Andrew Avedian as witnesses.”

In the August 12, 2009 letter to Attorney Buck, Attorney Peloquin also wrote, “[p]lease advise of your list of witnesses.” He received no response.

On August 14, 2009, the hearing on the charges set forth in the July 2, 2009 notice began before Attorney John O’Day, the hearing officer designated by the City Manager. At the conclusion of the testimony of Gina Genatossio, and by agreement of the parties and Hearing Officer O’Day, the hearing was adjourned at approximately the close of the business day. By agreement of the parties and the hearing officer, the second day of hearing was scheduled to continue at 9 a.m. on Thursday, August 20, 2009.

On August 20, 2009, the hearing resumed with the testimony of Toby Lauder. Attorney Buck was cross examining Lauder when, at about 11:15 a.m., Attorney Buck requested a break to determine whether he had any additional cross examination. Hearing Officer O’Day granted the break and Attorney Buck, the Appellant, and Edward T. Saucier, President of NEPBA Local 911, left the hearing room. When Attorney Buck returned a few minutes later, the Appellant did not return with him. Attorney Buck announced that he had no additional cross examination for Lauder.

As Lauder was leaving the hearing room, Attorney Peloquin asked about the Appellant’s whereabouts. Attorney Buck responded with words to the effect that the Appellant had left. Attorney Peloquin requested that the Appellant return to the hearing to testify. Attorney Buck responded that the Appellant would not be returning and he was not going to testify. Attorney Peloquin responded that, in the July 2, 2009 notice, the City Manager had directed him to attend and testify truthfully. Attorney Buck responded that the Appellant was not going to testify.

Hearing Officer O’Day learned what had occurred and offered to Attorney Buck that he would take a lunch break if it would facilitate the Appellant returning to the hearing and testifying.

Attorney Buck stated that the Appellant would not be returning and that he was not prepared to testify that day. He further stated that the Appellant might be prepared to testify on another date. Attorney Buck questioned the legality of the order by City Manager O’Brien to the Appellant in the July 2, 2009 notice directing him to attend the hearing and testify truthfully. Attorney Buck asserted, in part, that it conflicted with that portion of the civil service statute that gave the appellant the option of answering by counsel. He further asserted that Attorney Peloquin had failed to include the Appellant in the list of witnesses provided to Attorney Buck.

Attorney Peloquin responded that the civil service statute did not preclude or override an order from the Appointing Authority that the Appellant attend and testify truthfully. Attorney Peloquin further asserted that he did not need to list the Appellant on his witness list because he already had been directed by the City Manager in the July 2, 2009 notice to attend and testify truthfully.

Hearing Officer O’Day resumed the hearing. He determined that the Appellant had been properly notified of the hearing and the continuation date. He stated that he would not decide the legality of the City Manager’s order to the Appellant to attend and testify truthfully. However, he stated that, in deciding the charges in the July 2, 2009 notice, he would draw an adverse inference against the Appellant for his failure to testify. Hearing Officer O’Day then announced, at about noon, that the hearing was concluded.

In a letter dated August 24, 2009, Chief Gemme notified the Appellant in writing pursuant to G.L. c. 31, § 41 that he was suspended for five (5) tours of duty without pay for failing to obey the order to testify at the hearing. The reason given for the imposition of the suspension was that “[y]ou disobeyed the City Manager’s written directive in a July 2, 2009 notice when you failed to remain at a disciplinary hearing to consider the charges against you and testify.”

In correspondence also on August 24, 2009, City Manager Michael V. O’Brien notified the Appellant that a hearing pursuant to G.L. c. 31, § 41 would be taking place on August 28, 2009 and that the “hearing could result in disciplinary action against you, up to and including dismissal.” The City Manager’s correspondence stated that, “[y]ou disobeyed my written directive in a July 2, 2009 notice when you failed to remain at a disciplinary hearing to consider the charges against you and testify.”

Other than announcing through his counsel at the August 20, 2009 hearing that he would not obey the City Manager’s order that he testify, the Appellant did not challenge the City Manager’s order with the Police Department or the City Manager. The Appellant never claimed a right not to testify at the hearing on August 20, 2009 based on a privilege against self-incrimination.

On August 28, 2009, there was a hearing pursuant to G.L. c. 31, § 41 on the Appellant’s appeal of the five (5) day suspension for failing to obey the order to testify and to determine whether he should be dismissed for failing to obey the order to testify. The hearing officer was Attorney Karen Meyer, who was appointed by the City Manager. At the hearing, the parties reached an agreement on pertinent facts, which the hearing officer incorporated into her final reports.

On September 18, 2009, Hearing Officer Meyer submitted a Hearing Officer Report and Recommended Disposition to the City Manager in which she found that there was just cause to uphold the five (5) day suspension and dismiss the Appellant for failing to obey the order to testify. On September 22, 2009, the City Manager issued a decision in which he adopted the hearing officer’s report in its entirety, denied the Appellant’s appeal of the five (5) day suspension, and dismissed him.

The Appellant appealed the suspension and the dismissal to the Civil Service Commission.

The Appellant argues that the termination issued by the Appointing Authority for his failure to testify at his Section 41 hearing is simply without “just cause.” He contends that this order was unlawful and counter to the legislative purpose and intent of G.L. c. 31, and conflicts with the clear language of G.L. c. 31, § 41. The Appellant frames the Section 41 hearing as his opportunity to present his side of the story, if he so chooses. The Appellant relies on Cleveland Bd. of Education v. Loudermill, 470 U.S. 532 (1985) for the proposition that, in order to address the due process concerns of a public employee, a pre-termination hearing should provide the employee with (1) oral or written notice of the charges against him; (2) an explanation of the employer’s evidence; and (3) an opportunity to present his side of the story. According to the Appellant, statutes that provide such a scheme, such as Chapter 31, are designed to protect the employee’s due process right, and provide the first opportunity for the employee to answer the allegations set forth in the charges from the Appointing Authority, if the employee so desires. On the other hand, such statutory schemes are not designed to give the Appointing Authority the opportunity to continue its investigation into the underlying matter.

The Appellant has a pending grievance before an arbitrator in connection with the discipline he received for the charge of misconduct, which was the subject of the August 20, 2009 hearing. The instant appeal before the Commission is only related to the suspension and dismissal for refusing to obey the City Manager’s order to testify at the August 20, 2009 hearing.

The Appellant further argues that the specific language of Section 41 that provides a civil service employee the ability to answer the charges from the Appointing Authority “personally or by counsel,” is directly relevant to the issue of this case. He argues that, in the civil service arena, this language means much more than simply allowing an employee to represent himself or be represented by counsel. Instead, the language means that an employee may opt not to take the stand and testify, and can simply argue the absence of just cause. Or, according to the statute, he may have a representative argue on his behalf.

The Appellant also contends that the City was not prejudiced by the Appellant’s choice not to testify because the investigatory interview, conducted by BOPS, had been completed. The Appellant attended and answered questions at this investigatory interview, and a transcript of his testimony was available for the Appointing Authority to present at the Section 41 hearing, which it chose not to do.

Lastly, the Appellant cites Falmouth v. Civil Service Commission, 61 Mass.App.Ct. 796 (2004) for the proposition that the hearing officer is permitted to make an adverse inference in certain situations, which the Appointing Authority did here when it drew a negative inference from the Appellant’s refusal to testify. According to the Appellant, Falmouth lends further support to the argument that the Section 41 hearing is for the benefit of the employee and, as such, it is his decision to determine whether he will answer the charges or risk the adverse inference.

The City argues that the Appellant was obligated to obey the City Manager’s order to testify at the Section 41 hearing as the Department’s Rules and Regulations require that an officer or employee “shall truthfully state all facts” when he appears before any “Departmental or other official investigation, hearing, trial or proceeding” and “he shall fully cooperate in all phases of such investigations, hearings, trials and proceedings.” The City argues that Section 41 cannot, and does not, override the Appellant’s obligation to comply with these Rules and Regulations. The City does allow that in cases with criminal implications, the employee cannot be compelled to testify after invoking his constitutional right against self-incrimination. But it notes that this is not the case here as the Appellant did not attempt to invoke a claim of privilege.

As support for its position, the City relies on Boston Police Department v. Tolland, 2005 WL 1309076 (Mass.Super. 2005), aff.’d 67 Mass.App. 1107, 2006 WL 2772636 (Mass.App.Ct. 2006; Rule 1:28 Decision), rev.den., 447 Mass. 1115 (2006). In Tolland, the Court upheld a three (3) day suspension of an officer for failing to obey an order, pursuant to a department regulation, to appear at a hearing, even though the officer was told by a union official that the hearing would be postponed. The City also cites Massachusetts Parole Board v. Civil Service Comm’n, 47 Mass.App.Ct. 760, 766 (1999) for the proposition that an employee cannot refuse an employer’s order to appear and answer questions at an investigatory interview. There is no basis for finding that a police officer’s obligations to answer questions at an investigatory interview differ from his obligations to do the same at a Section 41 hearing, according to the City.

Regarding Tolland, the City contends that even though the facts differ in that the employee in Tolland did not refuse to testify, but rather did not appear at the hearing, there are substantial similarities that make it appropriate to extend the holding to the instant case. Such similarities include the fact that in Tolland, the employee was ordered to appear at the hearing pursuant to a departmental regulation. Moreover, according to the City, the Appellant’s behavior in the instant case was far worse because he continued to defy the order even after being suspended and threatened with dismissal.

The City rejects the Appellant’s argument that because he testified at the BOPS interview, he had no further obligation to testify at the Section 41 hearing. Rather, it contends that the obligation of the Appellant to account for his actions includes testimony and cross-examination at a full due process hearing, not just answering an interviewer’s questions. In addition, the Appointing Authority was investigating more than what BOPS had investigated; the issue of untruthfulness, including what was said by the Appellant at the BOPS interview, was a matter of the Section 41 hearing.

On the subject of the Section 41 hearing, the City argues that it is not the “Appellant’s hearing,” but rather the purpose is to bring to light information or testimony, in addition to that developed in the prior investigation, to make a fully informed decision as to whether the charges are supported by evidence and there is just cause to support the discipline. This requires the cooperation of all employees. As further support, it notes that Section 41 imposes an obligation on the Appointing Authority to hold the hearing, and does not even condition the obligation on the Appellant’s request or assent to a hearing.

The City also rejects the Appellant’s argument that the language of Section 41, which provides that “[t]he person who requested the hearing shall be allowed to answer, personally or by counsel, any of the charges which have been made against him” evidences that the employee is not required to testify, and may have his counsel testify on his behalf. Instead this language simply means the employee can choose between professional representation or pro se advocacy as evidenced by a long line of cases. Therefore, in the City’s opinion, this language of Section 41 should not nullify the Appellant’s conditions of employment as a police officer that required him to obey the City Manager’s order to testify at the hearing.

For the complete decision please go to Dykas v. City of Worcester

About Attorney John J. MacLaughlan

John MacLaughlan is Massachusetts licensed attorney as well as a Boston police officer. John is currently assigned to the Youth Violence Strike Force (Gang Unit). He is a graduate of the Massachusetts School of Law with a concentration in Labor Law. He holds a Master’s Degree in Criminal Justice from the University of Massachusetts at Lowell as well as a Bachelors Degree in Political Science from the University of Massachusetts at Amherst. John has taught Defensive Tactics, Firearms, Use of Force, Applied Patrol Procedures, and Police Response to Active Shooters to sworn police officers and police academy recruits. Prior to becoming a Boston Police Officer, John served for 9 years as a police officer in Lowell, where he was a member of the Police Dive Team and Patrol Rifle Team.
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