CITY OF NEW BEDFORD & another vs. CIVIL SERVICE COMMISSION & others.

GOODMAN, J. A police officer while serving a probationary period was discharged by the city of New Bedford for various acts and omissions which occurred before and during that period. See G. L. c. 31, Section 20D, as amended through St. 1971, c. 182, Sections 1 & 2. He complained through his attorney to the Director of Civil Service (hereinafter referred to as the "administrator" in accordance with the change in nomenclature made by St. 1974, c. 835, Section 105, effective July 1, 1975). Thereupon the administrator wrote to the mayor that as the result of his "review . . . it appears that the reasons are not those for which termination is authorized under Section 20D." He concluded, "It is, therefore, my decision that the termination . . . may not be approved on the basis of the information furnished." The city appealed to the Civil Service Commission (commission), which held a hearing and, by a vote of three to two, "Voted; That after review and careful consideration of all the evidence, to deny the appeal because the appointing authority's action was not within the purview of General Laws, Chapter 31, Section 20D." The city thereupon brought this action in the Superior Court against the commission, the administrator, and the police officer, seeking relief, in the nature of certiorari, from the decision of the commission. G. L. c. 249, Section 4, as appearing in St. 1973, c. 1114, Section 289. Judgment was entered reciting that "[t]he Court ha[d] duly considered the transcript of the certified record and the proceedings of the Civil Service Commission" and ordering that the decision of the commission be affirmed and the police officer be reinstated. The city appealed to this court; we reverse.

It is clear, and the defendants virtually concede, that the administrator was without power in this case to reverse the decision by the city to discharge the police officer pursuant to G. L. c. 31, Section 20D. By the first paragraph of that section an increase in pay or change in duties is prohibited without approval of the administrator, and by the second paragraph the administrator is empowered to "establish procedures assuring the evaluation by

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appointing authorities of the performance of police officers during [their] probationary period." The defendants concede that the prohibition in the first paragraph has no application to termination of employment and that such procedures as the administrator has established under the second paragraph "did not relate to grounds for termination." [Note 1] (We do not, of course, intimate any view as to the scope of the administrator's rule-making power under the second paragraph of Section 20D.) Citing nothing in the civil service laws in support of the administrator's power in this case, the commission nevertheless points to its "broad authority under G. L. c. 31, Section 2(b), to `hear and decide all appeals from any decision or action of or failure to act by, the director [administrator] upon application of a person aggrieved thereby.'" It argues that the administrator's "administrative action was properly a subject of Civil Service Commission review." This is, however, beside the point. The administrator's decision was beyond his powers and the commission's review could go no further than to vacate that decision. Cf. Cox v. Civil Serv. Commn., 3 Mass. App. Ct. 793 (1975).

The structure and content of the civil service laws impels our conclusion; they provide an administrative hearing for tenured employees, G. L. c. 31, Section 43, but not for probationary employees, whose rights are defined in Section 20D. See Sullivan v. Commissioner of Commerce & Dev., 351 Mass. 462 , 465-466 (1966); Costa v. Selectmen of Billerica, ante 516 (1978), in which probationary employees contested their discharge directly in the Superior Court, seeking reinstatement in an action in the nature of mandamus. See also Scott v. Manager State Airport, Hanscom Field, 336 Mass. 372 (1957); Thibeault v. New Bedford, 342 Mass. 552 (1961), in both of which discharges under

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Section 20D were attacked by mandamus. Compare Canney v. Municipal Court of the City of Boston, 368 Mass. 648 (1975), in which the court held that a discharge for unauthorized absence was not subject to administrative review but suggested that judicial review by declaratory judgment would be available.

Nor do we deem it appropriate to attempt to decide this case "on its merits" as the police officer asks us to do. Contrast Stetson v. Selectmen of Carlisle, 369 Mass. 755 (1976) (in which the record made in the lower court was sufficient to permit adjudication of a motion for summary judgment); Canney v. Municipal Court of the City of Boston, 368 Mass. at 656 n.8. The validity of the discharge by the city will depend on whether its action was taken for reasons authorized by Section 20D. See Scott v. Manager State Airport, Hanscom Field, 336 Mass. at 376. The burden of showing the invalidity of the discharge is on the employee, and the determination should be made upon the presentation of evidence to a judge, who can sort out the various related reasons which were adduced and make findings and rulings which we can then review on the basis of a concrete record.

Accordingly, the judgment of the Superior Court is reversed, and the case is remanded to the Superior Court Department of the Trial Court for the entry of judgment quashing the decision of the commission and ordering that it vacate the decision of the administrator. See G. L. c. 249, Section 4, last sentence, as appearing in St. 1973, c. 1114, Section 289. Costs of appeal are not to be awarded to any party.

So ordered.