Civil Service overturns suspension, orders DOC to return restitution to appellant

For the entire decision of the Civil Service Commission go to: Dennis E. Hansbury v. Department of Corrections

Appellant, Dennis E. Hansbury  filed an appeal with the Civil Service Commission on April 13, 2005, claiming that the Department of Correction did not have just cause to suspend the Appellant for five days for breaking the window of a guard tower with a softball.

The Appellant, a Recreation Officer, has been a tenured civil service employee of Department of Corrections  since November 3, 1991. He is assigned to the Massachusetts Correctional Institution Concord.

On October 9, 2004, the Appellant was on his regularly assigned shift in the recreation yard at MCI Concord. Correction Officer Robert Hoey was assigned to duty in Guard Tower 2 at the time of the incident.

The prison is surrounded by a fence approximately twenty-five (25) feet high. Outside the fence, there is a concrete wall which is approximately thirty (30) feet high interspersed with forty-five (45) foot high guard towers. The space between the fence and the wall, commonly called “no-man’s land,” gives the officers access to the towers. After recreation time was complete, the Appellant went to retrieve the errant softballs from “no-man’s land. His normal custom was to throw some of the good balls back over the fence onto the field, dispose of the damaged ones by carrying them out of the yard, and collect the remaining good balls in a bag. On the day of this incident, the Appellant collected approximately 12 softballs and threw 4 back over the fence on to the field.  While passing Guard Tower 2, the Appellant attempted to throw one ball which was missing its exterior leather cover up to Hoey in the guard tower but missed.

The Appellant attempted to throw a second ball up to Hoey through the open window of the Guard Tower but missed and hit the window this time, which shattered. The Appellant described and demonstrated how he threw the softball and it appeared to be more of a basketball hook shot than a throw. The Appellant testified that he was very surprised that the window broke because he believed that the window was made of plexiglass. The Appellant immediately reported the incident to Supervisor Kevin Foley.

Sgt. Anthony Ciccone conducted the Superintendent’s investigation of this matter for the DOC, which he completed on November 4, 2004. On February 9, 2005, the Appellant received notice of a March 8, 2005 hearing. He was charged with violating Blue Book Rule 7(d) which states “Employees should not read, write, or engage in any distracting amusement or occupation during the work hours except to consult rules or other materials necessary for proper performance of their duties.” He was also charged with violating Rule 15(b) which states “You will be liable for any willful destruction, loss, waste or damage by you of state property.”  G.L. c. 266 § 104. Buildings; destruction or injury. §104 is as follows: “Whoever wilfully, intentionally and without right destroys, injures, defaces or mars a dwelling house or other building, whether upon the inside or outside, shall be punished by imprisonment for not more than two months or by a fine of not more than fifty dollars.

Willfull-adj. is used when referring to acts which are intentional, conscious and directed toward achieving a purpose. See “The word ‘wilfull’ or ‘wilfully’ when used in the definition of a crime, it has been said time and again, means only intentionally or purposely as distinguished from accidentally or negligently…it has been stated with equal repetition and insistence that the requirement added by such a word is not satisfied unless there is a bad purpose or evil intent.” Rollin M. Perkins & Ronald n. Boyce, Criminal Law 875-76 (3d. ed. 1982) as quoted in Black’s Law Dictionary Seventh Edition, West Group St. Paul Minn. 1999, p. 1593.

A hearing was held in the superintendent’s office on March 8, 2005. The hearing officer was Labor Relations Advisor Christopher Simonelli. The Appellant, Chief Union Steward DOC Sgt. Sean Cremin and Appellant’s attorney Stephen Pfaff were present at this hearing.

Sgt. Sean Cremin testified that as the union steward he was at the Appellant’s disciplinary hearing. He had a clear memory of the DOC disciplinary hearing; no witnesses were sworn before Simonelli, which hearing took place in Simonelli’s office. Simonelli prefaced his remarks by stating that he had been a recreation officer previously. The evidence was summarized and Simonelli then stated that he had looked over the circumstances and not see any intentional damage. He “did not see anything here to warrant discipline.” Simonelli clearly and repeatedly stated that his recommendation was “No discipline.”

The Appellant did serve the DOC hearing officer Simonelli with a subpoena, on June 3, 2008, commanding his presence as a witness at this Commission hearing for June 5, 2008. Simonelli did not appear at the hearing nor did he contact the Appellant’s attorney as requested in the subpoena.  Simonelli’s written recommendation is not sent to DOC Commissioner Dennehy directly. It is sent “THRU: Ronald T. Duval, Associate Commissioner, Administration” He found that while the Appellant had not violated Blue Book Rule 7(d) but he had violated Rule 15(b).

He recommended a five (5) day suspension and that the Appellant pay $972 in restitution to be paid within 60 days.

Executive Office of Public Safety Commissioner Katherine Dennehy accepted Simonelli’s findings and sent Appellant notice of his five (5) day suspension on March 28, 2008. She ordered that he pay the restitution within 60 days. “Failure to make restitution will result in your being terminated”.

The Appellant paid the $972 in restitution, under the duress that he would be terminated from his employment, if he did not pay it.

Sgt. Ciccone, Sgt. Cremin and the Appellant testified that there was no intent on the part of the Appellant to damage the window when he threw the softball. It is found that the Appellant did not willfully damage the window.

The Appellant applied for and received unemployment compensation for his period of his suspension. His claim for unemployment compensation required a hearing due to the DOC claim that he was suspended for violation of established rules and regulations of the employing unit. The hearing was held by the Mass. Department of Workforce Development, Division of Unemployment Assistance. The Division determined that: “…the employer witness failed to substantiate that the claimant violated the rule in question.” The Division further concluded that “The claimant did not intentionally break the window. There was no “wilful” damage to state property. While the claimant exercised poor judgment in throwing the softball as he did, the employer failed to establish that the claimant threw the ball intending to break the window.”

CONCLUSION

The responsibility of the Commission is to determine, by a preponderance of the evidence, that disciplinary action taken by the Appointing Authority was reasonably justified at the time when the decision was made.

An action is considered justified when it is “done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind; guided by common sense and correct rules of law.”

The Commission determines if disciplinary actions are justified by inquiring, “whether the employee has been guilty of substantial misconduct which adversely affects the public’s interest by impairing the efficiency of public service.”

The Appointing Authority’s burden of proof is one of a preponderance of the evidence which is satisfied “if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there.” In reviewing an appeal under G. L. c. 31, § 43, if the Commission finds by a preponderance of the evidence that there was just cause for an action taken against an Appellant, the Commission shall affirm the action of the Appointing Authority.

The Appointing Authority has failed to meet its burden. The record does not support preponderance of the evidence that there was just cause to suspend the Appellant for five (5) days.

Appellant is charged with violating Blue Book rule 15(b) which states, in part: “You will be liable for any willful destruction, loss, waste or damage by you of state property.” It is necessary to define conduct that is “willful” and also differentiate conduct that is “reckless,” in order to determine if the suspension of the Appellant was justified because “indifferent or reckless wrongdoing is not deliberate or intentional wrongdoing.”

As a general legal principle, “intentional” is “limited, wherever it is used to the consequences of the act.” It is the consequences of an act, not the act itself, which must be intentional.

Conversely, “reckless” refers to intentional conduct where there is a “high degree of likelihood that substantial harm will result to another.” Commonwealth v. Cruz, 430 Mass. 182 (Mass. 1999) quoting Commonwealth v. Catalina 407 Mass. 779 (Mass 1990) That is, an actor who is reckless is aware of the highly probable results of his actions, but chooses to disregard the risk and engage in the act regardless of this knowledge.

In this case, willful must be interpreted to mean intentional behavior. In Blue Book Rule 15(b) the word “willful” modifies “destruction, loss, waste or damage,” meaning that the actual destruction itself must be willful. Interpreting this rule to include all willful conduct which brings about any destruction or damage, whether it is intentional or unintentional, robs the rule of its efficacy. If the intent of the drafters of the Blue Book Rules was to make employees liable for intentional acts which result in unintentional damage, the rule should have been written to reflect reckless behavior as well.

The Appointing Authority has presented no evidence that the Appellant willfully broke the window. On the contrary, all of the credible evidence supports the determination that the damage caused was not intentional or wilfull. The rule clearly states that the destruction or damage must be willful. While the Appellant’s behavior may have exhibited poor judgment or negligence, it does not rise to the level of willful. The Appellant only paid the Restitution under the duress of being terminated from his employment, if he did not pay. This Restitution was imposed by the DOC in disciplinary manner for a rule violation, which rule violation has been determined not to have occurred. Therefore, the Restitution paid by the Appellant shall be returned to him. However, the DOC is not precluded by this decision from seeking payment of restitution, by some other means or theory that the Appellant is liable for the damage.

For all the above reasons, the Appellant’s appeal filed under Docket Number D-05-137 is hereby allowed. The Appellant shall be returned to his position, without any loss of pay or other benefits. Additionally, the Appellant shall be repaid the $972 he paid in restitution to the DOC. Civil Service Commission,

 

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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