Boston Fire Captain Appeal Dismissed in Failed Drug Test

Recently the Appeals court dismissed an appeal by a Boston Fire Department Captain for a failed drug test. In JAMES L. BERLO, JR. vs. CITY OF BOSTON 78 Mass.App.Ct. 111 (2010) the court addressed a number of issues in Civil Service law, including “Due Process”.

In deciding the court stated, “On March 12, 2007, the plaintiff, a captain in the city of Boston’s fire department (department), tested positive for a narcotic on a random drug test administered by the department. He appeals from the dismissal by a judge of the Superior Court of his amended complaint, which sought review of a decision issued by the department’s hearing board (board) confirming the imposition of a month’s suspension by the department. The plaintiff contends that the judge erred in holding that the court lacked jurisdiction to review the board’s decision. We affirm

General Laws c. 31, § 41. General Laws c. 31, § 41, permits an appointing authority to suspend an employee for more than five days only if there is “just cause” or if the authority has secured the employee’s written consent. The statute goes on to state that in order to suspend the employee for just cause, the appointing authority must meet specified procedural requirements, including written notice and a full hearing. Contrary to the plaintiff’s assertion, “just cause” does not refer to the requirements imposed on the process; rather it is a separate underlying predicate for the imposition of a penalty. Otherwise stated, an appointing authority’s satisfaction of all the procedural requirements listed in § 41 cannot support a result that is not also based on just cause. In this case, as an example, if it were demonstrated that another individual’s test result had been mistakenly substituted for the plaintiff’s, his suspension would not be for “just cause” regardless of the department’s careful adherence to the notice and hearing requirements.

General Laws c. 31, § 42. General Laws c. 31, § 42, as amended through St. 1981, c. 767, § 19, first addresses a claim that the appointing authority failed to follow the “requirements” of § 41. In such a case the employee is directed to file a complaint with the commission. “Requirements” refers, as we have stated, to the procedural requirements — time deadlines, notice, and hearing — of § 41. This is demonstrated by the second paragraph of § 42 which, having dealt with the “requirements” of § 41, goes on to provide that the claimant may “at the same time request a hearing as to whether there was just cause for the action of the appointing authority” (emphasis added).

The plaintiff relies on language contained in the third paragraph of § 42, which confers jurisdiction in the Supreme Judicial Court or the Superior Court “over any civil action for the reinstatement of any person alleged to have been illegally discharged, removed, [or] suspended . . . .” The term “illegally discharged” refers to a failure to meet the legal requirements of § 41, which, as we have stated, are procedural in nature. These requirements do not refer to the merits of the case; they are imposed for the benefit of the culpable and blameless alike. While this third paragraph arguably provides an alternative avenue to appeal a claim of procedural irregularity, we do not address that issue because the plaintiff makes no such claim. The plaintiff’s claim that he has a valid prescription from his physician for the controlled substance for which he tested positive falls squarely within the category of a challenge for lack of just cause.

General Laws c. 31, § 43. Turning to section 43 of the statute, as amended by St. 1981, c. 767, § 20, we conclude that it applies to the plaintiff’s case with precision. He is “a person aggrieved by a decision[ [FN2]] of an appointing authority made pursuant to section forty-one,” and he must therefore “appeal in *114 writing to the commission.” Further resolving any possible doubt, the second paragraph of section 43 specifically refers to the commission’s need to determine whether there was “just cause for an action taken against such person” in resolving an appeal under that provision. The plaintiff was required to appeal the decision “within ten days after receiving written notice of such decision.” He failed to do so even though the decision itself informed him of this requirement.

To the extent that we do not address the defendant’s other contentions, “they ‘have not been overlooked. We find nothing in them that requires discussion.’ ” Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).”

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to
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