BOARD OF SELECTMEN OF NORTH ATTLEBOROUGH vs. CIVIL SERVICE COMMISSION. [Note 1]

DREBEN, J. Punishment duty of sixteen hours was imposed on Lawrence M. Wynn, a North Attleborough policeman. Wynn's request for a hearing pursuant to G. L. c. 31, Section 62, was denied as untimely by the board of selectmen (board), North Attleborough's appointing authority. Wynn appealed to the Civil Service Commission (commission).

In those proceedings, the board moved to dismiss both on the ground that the commission lacked jurisdiction under

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G. L. c. 31, Section 42, to hear claims of a failure by the appointing authority to follow the procedures required by G. L. c. 31, Section 62, and for the reason that Wynn had not requested a hearing within the forty-eight hour period required by Section 62. Denying both motions to dismiss, the commission ruled that the board's failure to give Wynn a hearing was "prejudice per se" and ordered that Wynn be restored to his position without loss of compensation or other rights. [Note 2]

The board brought this action in the nature of certiorari (G. L. c. 249, Section 4) in the Superior Court. On the board's motion for summary judgment, a judge of the Superior Court ruled that the commission had no jurisdiction to hear Wynn's appeal under Section 42, and that Wynn's request was not timely filed under Section 62. A judgment entered quashing the commission's decision. The commission, in its appeal to this court, claims error in these rulings of law. We affirm the judgment for the reason that Wynn's request for a hearing was untimely under G. L. c. 31, Section 62.

Although it is preferable to consider jurisdictional questions first, see Attorney Gen. v. Industrial Natl. Bank, 380 Mass. 533, 534 (1980); 5 Wright & Miller, Federal Practice and Procedure Section 1350, at 548 (1969), that procedure is not woodenly followed, and there are instances where only the merits are discussed, e.g., Commissioners of Civil Serv. v. Municipal Court of the City of Boston, 369 Mass. 84, 91 (1975). In this case, where the legislative intent regarding jurisdiction is difficult to discern, see the appendix to this opinion, and where we are of opinion that, in any event, the merits should be reached without the requirement of yet another proceeding, compare Chakrabarti v. Marco S. Marinello Associates, Inc., 377 Mass. 419, 423 (1979), we decline to rule on the jurisdictional issue. As indicated in the appendix, we think legislative clarification of the question whether appeals under G. L. c. 31, Section 42, lie from actions of an appointing authority under G. L. c. 31, Section 62, would be most helpful.

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We turn, therefore, to the merits. The facts are undisputed. Wynn was given written notice of his punishment duty on Friday, July 13, 1979, at 10:32 A.M., and, as required by G. L. c. 31, Section 62, was informed of his right within forty-eight hours to make a written request for a hearing. Although his attorney, on Monday, July 16, 1979, orally requested a hearing and followed that request by a letter mailed on that day, the request was not received by the board until Thursday, July 19, 1979.

The relevant portion of G. L. c. 31, Section 62, as appearing in St. 1978, c. 393, Section 11, provides that "a police officer . . . upon whom punishment duty is imposed shall, within twenty-four hours of the imposition of such punishment duty, be given . . . written notice stating the specific reason for the imposition . . . and informing him that he may, within forty-eight hours of receipt of such notice, request in writing a hearing by the appointing authority." Interpreting the statute as requiring that a written request be filed with the appointing authority within forty-eight hours, the board denied the request for a hearing. We think the board's construction was correct.

In Iannelle v. Fire Commr. of Boston, 331 Mass. 250, 251 (1954), the Supreme Judicial Court construed a section of c. 31, providing that a hearing be requested within five days after receiving notice, as requiring that the request be received by the appointing authority within five days. See also Daley v. District Ct. of Western Hampden, 304 Mass. 86, 93-94 (1939). Where as here, the notice must be "given" to the police officer within twenty-four hours, and the time period allowed for requesting a hearing is also a matter of hours, rather than days, the inference is strong that the request must be received by the board within the requisite time period. See Assessors of Marlborough v. Commissioner of Rev., 383 Mass. 876 (1981).

Accordingly, the judgment of the Superior Court quashing the order of the commission is affirmed.

So ordered.

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APPENDIX

An examination of G. L. c. 31, Sections 42 and 62, and the legislative history of those sections reveals the difficulty in determining whether the Legislature intended to permit appeals to the commission under Section 42 from failures of an appointing authority to follow the requirements of Section 62. Both sections were part of a recodification of the civil service laws effected by St. 1978, c. 393, Section 11. The purpose of the codification was to rearrange c. 31 "topically, as well as sequentially," or otherwise put, to make "technical" rather than "substantive" amendments to c. 31. 1977 House Doc. No. 6153, at 3 (submission of the Secretary of Administration, dated May 25, 1977, accompanying the legislation which became St. 1978, c. 393).

Prior to the 1978 recodification, an appeal to the commission from failures to follow the requirements of the section imposing punishment duty was clearly authorized. General Laws c. 31, Section 46A (as appearing in St. 1975, c. 557, Section 2), permitted a person to file a complaint with the commission alleging that "his employment or compensation has been affected by action of the appointing authority in failing to follow the requirements of section forty-three." Since punishment duty appeared as Section 43(g), there is no question that an appeal under Section 46A was proper.

In the 1978 revision, however, former Section 43(g), the provision concerning punishment duty of police officers and fire fighters, was separated from Section 43, a section dealing with disciplinary matters, renumbered as Section 62, and placed with other sections relating to police officers and fire fighters. The language of Section 62 was not changed in any respect here material except to include a reference to Section 42, the section replacing prior Section 46A. Compare G. L. c. 31, Section 43(g), as appearing in St. 1965, c. 281, with G. L. c. 31, Section 62, as appearing in St. 1978, c. 393, Section 11, at 464-465.

When the punishment duty provision was moved from Section 43, there was no corresponding amendment to Section 42. Thus Section 42 (as appearing in St. 1978, c. 398, Section 11) in relevant part reads as follows: "Any person who alleges that an appointing authority has failed to follow the requirements of section forty-one in taking action which has affected his employment or compensation may file a complaint with the commission . . . ." The section refers, as did the previous Section 46A, to failures to follow the requirements of former Section 43 (now Section 41) and makes no reference to Section 62. Nor does the statute contain an express denial of commission jurisdiction as in Canney v. Municipal Court of the City of Boston, 368 Mass. 648, 651 (1975), where St. 1971, c. 179, Section 4, inserting Section 43(j), excluded "unauthorized absence" from the hearing and appellate review sections of c. 31.

The question, therefore, is whether the omission was deliberate. There is some indication that it was not. For example, Section 62, unlike former Section 43(g), requires that a copy of Section 42 be given to the person upon whom punishment duty is imposed. If no appeal to the commission lies under Section 42, giving a police officer a copy of that section would serve no purpose.

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Nor is there a readily apparent reason for the requirement contained in Section 62 (and in former Section 43[g]) that a copy of the notice imposing the punishment duty be sent to the commission.

In addition, the rule of statutory construction applicable to recodification suggests that no change was intended. "It is the general rule that verbal changes in the revision of a statute do not alter its meaning, and are construed as a continuation of the previous law." Neiss v. Burwen, 287 Mass. 82, 96 (1934). Town Crier, Inc. v. Chief of Police of Weston, 361 Mass. 682, 686 (1972). See also Carter v. Burgess, 323 Mass. 295, 301 (1948); Scaccia v. Boston Elev. Ry., 317 Mass. 245, 251 (1944). A similar rule of construction is followed where there is a mere rearrangement of sections. See Sands, Sutherland Statutory Construction Section 28.11 (4th ed. 1972); Jones v. Mills County, 224 Iowa 1375, 1379-1380 (1938). See also Trites v. Melrose, 318 Mass. 378, 380 (1945).

On the other hand, the language of Section 42 is quite specific. It refers solely to missteps under Section 41. Whether Section 42 should be construed literally despite the reference to Section 42 in Section 62 and despite the legislative history of the recodification is obviously a question of considerable complexity. In these circumstances, we defer treating the question of jurisdiction and suggest that the commission seek a legislative clarification of the scope of Section 42.