JAMES E. YOUNG vs. COMMISSIONER OF PUBLIC SAFETY.

SMITH, J. The plaintiff, a member of the State police, brought this action for declaratory and injunctive relief against the Commissioner of Public Safety. The plaintiff alleges that the Commissioner improperly denied him the right to file a late application for a promotional examination. He claims that the Commissioner should have accepted his application because he was on injury leave at the time of the announcement of the pending examination and he was not informed or aware of the deadline for applications for the examination. The plaintiff asked the court (1) to

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permit him to participate in an examination for promotion to corporal [Note 1] and (2) to declare that the Commissioner's refusal to accept a late application violated due process.

At the trial before a District Court judge, sitting in the Superior Court by statutory designation, the parties stipulated as to several facts. In addition, the judge heard testimony and received exhibits. The judge entered a declaration that "the plaintiff be allowed to participate in the promotional process for promotion to the rank of corporal with those applicants who took the promotional examination on March 31, 1979," and the defendant appealed. The defendant does not question the correctness of the judge's subsidiary findings but challenges the ultimate conclusions drawn from those findings. We have before us the judge's "Findings, Rulings and Order for Judgment." We also have the transcript and the exhibits.

We summarize the facts as stipulated and as found by the judge. On March 12, 1978, the plaintiff was injured while on duty and commenced a period of leave which continued to February 21, 1979, when he returned to active duty at the Andover substation. On November 20, 1978, while the plaintiff was on leave. Andover received by teletype information which concerned an anticipated examination for the next promotional list. The teletype information was posted on the bulletin board in the station office for two weeks and then was posted in the "trooper room."

On January 21, 1979, Andover received by teletype Special Order No. 11, which contained the date and location of the promotional examination and established February

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23, 1979, as the deadline for filing applications for the examination. [Note 2] A letter copy of Special order No. 11 was received by Andover on or about January 24, 1979, and it was posted in the trooper room for about three weeks. During the period that the announcement of the examination and the special order were posted in the squadron room or in the trooper room, the plaintiff visited the substation on three days, November 27, 1978, December 8, 1978, and February 20, 1979. The judge made a specific finding that the plaintiff knew or should have known of the pending expiration of the existing promotion list and that another examination was anticipated. The plaintiff reported for duty on February 21, 1979, and that date was the only time he was on duty prior to the deadline for filing an application, which was February 23, 1979. [Note 3] Soon after the plaintiff reported for duty on February 21, 1979, and before roll call, he was dispatched to the scene of a motor vehicle accident, and upon his return to the substation was immediately assigned to the desk in the station office for the balance of his shift, and did not have an opportunity to go over the accumulated orders and teletypes posted in the trooper room. At no time prior to the deadline for filing an application was the plaintiff informed by the staff sergeant or by anyone connected with the office of the defendant of the contents of the special order.

Based on these subsidiary findings, the judge concluded that (1) a regulation of the Massachusetts State police imposed an obligation on the substation staff sergeant to inform members of the substation, including those on injury leave, of all State police orders, (2) it was unreasonable as

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matter of law to require the plaintiff, while he was on injury leave status, to keep himself informed of all orders which had accumulated during his absence, (3) after his return to duty on February 21, 1979, the plaintiff did not have the opportunity to make himself aware of the contents of the special orders, including Special Order No. 11, which had accumulated during his absence, and (4) the refusal of the defendant to accept a late application from the plaintiff to take the examination and participate in the promotional process was a denial of due process. We disagree.

The judge's conclusion that under the rules and regulations of the State police the staff sergeant had an obligation to inform the plaintiff, while on injury leave, of all State police orders is not warranted by the language of the regulation. The judge relied on rule 5.14(u) of the Rules and Regulations of the Massachusetts State Police, set forth in the margin. [Note 4] There is nothing in the regulation that imposes such an obligation on the staff sergeant in regard to troopers who are on injury leave. To read this requirement into the regulation would mean that the staff sergeant, in addition to all his other duties, would have to telephone or otherwise inform each trooper who is off duty because of a day off, vacation, illness or injury leave of an order once it is received at a substation. It was not the intent of the rule to have such an effect, especially when read with rule 10 discussed below.

The judge's conclusion that it was unreasonable as a matter of law to require the plaintiff, while on injured leave

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status, to keep himself informed of all orders which had accumulated during his absence was not warranted by his subsidiary findings. Although Rule 10 of the Rules and Regulations of the Massachusetts State Police, set forth in the margin, [Note 5] requires an individual trooper to inform himself of all new orders, we do not read rule 10 to require troopers who are on injury leave to keep informed of such orders. In this case, however, the judge made a finding that the plaintiff knew or should have known of the pending expiration of the existing promotional list and that another examination was anticipated. This finding invites the logical inference that the plaintiff, a member of the State police for eight years, could expect that an order relative to an examination would be forthcoming. During the relevant period under discussion (November 21, 1978, to February 21, 1979), the plaintiff was not confined to bed or to his domicil. He was mobile, could drive an automobile, and did, in fact, visit the substation on three occasions. He had ample opportunity to learn of the imminence of the filing deadline either by inquiring of someone in authority or by examining the bulletin board.

Once the plaintiff returned to duty on February 21, 1979 (two days before the application deadline), rule 10 took effect. Under that rule, a trooper has the primary responsibility to become aware of any new orders that were issued prior to the trooper's returning to active status. This may be accomplished in various ways, such as reading the bulletin board or in conversation with superiors or fellow troopers. Rule 5.14(u) is designed to supplement, not to replace, the rule 10 responsibility. For example, once a trooper has become aware of a new order, the staff sergeant is available

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to answer questions or to explain the order. We accept the judge's finding that the plaintiff "did not have an opportunity to go over the accumulated orders and teletypes posted in the [t]rooper room." But the judge also found that the plaintiff "knew or should have known" that another examination was anticipated. Although the plaintiff did not have the opportunity after his return to read the orders that had arrived in his absence, he did have ample opportunity to converse with superiors or fellow troopers. Therefore, the fact that the plaintiff knew that another examination was anticipated, the fact that under rule 10 he had the obligation once he returned to active duty to inform himself of orders received at the substation in his absence, and the fact that he had opportunity to inquire about any order relative to the examination of March 31, 1979, warrant the conclusion, in the circumstances of this case, that the plaintiff had the obligation and the opportunity to inform himself of the contents of Special Order No. 11. His failure to do so cannot be held against the defendant. Because of our conclusions we need not consider the judge's ruling that the defendant violated due process by failing to permit the plaintiff to participate in the promotional process.

The judgment is reversed, and a new judgment is to issue declaring that the plaintiff is not entitled to participate in the promotional examination on March 31, 1979.

So ordered.