ARTHUR E. CUSHING vs. FIRE COMMISSIONER OF BROOKLINE.

SPIEGEL, J. This is a bill in equity brought under G. L. c. 231A for a "declaration as to the employment status of the plaintiff relative to the Fire Department of the Town of Brookline." The facts have been agreed and a judge of the Superior Court reported the case without decision.

The defendant, as fire commissioner of the town of Brookline, is the appointing authority for the Brookline fire department. In 1950, the plaintiff was appointed to the position of fire fighter in the department. The appointment was a permanent one and the position is subject to the provisions of G. L. c. 31.

On March 17, 1956, the plaintiff suffered a lumbosacral sprain while performing duties as a member of the department. On July 3, 1957, he was hospitalized at the suggestion of an orthopedic specialist to whom he had been referred

Page 420

by the department physician because of recurring "back pain," and was confined there until October 3, 1957. On September 4, 1957, the chief of the department notified the plaintiff in writing that the plaintiff's sick leave had ended on September 3, 1957; that he would be carried as on vacation until September 17, 1957; and that on September 18, 1957, his name would be removed from the payroll of the department. Under date of September 25, 1957, the chief of the department informed the plaintiff in writing that the plaintiff was on a "sick leave without pay" status.

Following the plaintiff's discharge from the hospital on October 3, 1957, he presented himself for duty on October 7, 1957, and on each Wednesday thereafter until notified by the chief of the department that he need not continue to report. The plaintiff was not restored to duty, despite requests for restoration made to the defendant in November, 1957, January, 1958, and February, 1958. On January 6, 1958, the plaintiff presented to the defendant a certificate from a hospital official stating that "[t]he physician in charge of your case states there is no contraindication to your returning to work at the present time." The records of the department indicate that the plaintiff at no time requested, or was granted, a leave of absence.

On July 6, 1958, and again on December 22, 1958, the plaintiff requested the defendant to apply to the Director of Civil Service for approval of his reinstatement under G. L. c. 31, Section 46C. The defendant refused to do so whereupon the plaintiff himself requested the Director of Civil Service to approve his reinstatement under that statute. Ultimately, the Director of Civil Service refused the requested approval and the plaintiff appealed to the Civil Service Commission. On March 16, 1960, the commission unanimously rendered a final vote reading in part: "Voted: . . . To reverse the action of the Director and to render a decision that the reinstatement of Arthur E. Cushing to the position of Firefighter in the Brookline Fire Department be approved, and the Director shall make this decision a matter of record in the Division of Civil Service." On March 19, 1960, the defendant was notified by the commission

Page 421

of this vote but refused to reinstate the plaintiff.

The plaintiff's position of fire fighter in which he actively served prior to July 3, 1957, has not been filled since that date. However, on March 28, 1960, an appointment was made by the defendant of a person to the position of fire fighter in the department to replace another fire fighter who had left the service of the department. The number of fire fighters in the department is not fixed by any by-law, rule or regulation but is within the discretion of the defendant.

The plaintiff contends that he never was separated from his position as fire fighter, either before October 7, 1957, or after that date. Although the element of time alone is not the decisive factor in determining "separation from service," this court has held that the absence from duty for three months due to illness constitutes such a "separation" of one protected by the civil service law. Dunn v. Commissioner of Civil Serv. 279 Mass. 504, 509-510. The actions of the parties themselves, since July, 1958, indicate that they conceived the dispute to be one of "reinstatement" of the plaintiff to a position from which he had been "separated." The plaintiff's invocation of G. L. c. 31, Section 46C, as amended through St. 1947, c. 373, Section 2, [Note 1] which provides for the reinstatement of employees "separated from the . . . service" is evidence that the plaintiff no longer considered himself a member of the department.

It follows that, if the plaintiff is to be reinstated to his former position, it must be because of the decision of the Civil Service Commission pursuant to G. L. c. 31, Section 46C. The defendant takes the position that this decision is "invalid"

Page 422

for lack of compliance with G. L. c. 31, Section 2 (b), as amended through St. 1945, c. 725, Section 1, which section imposes certain duties on the commission and provides "that no decision or action of the director shall be reversed or modified . . . except by three affirmative votes of the commission, and in each case the specific reasons therefor shall be stated in the records of the proceedings of the commission . . ." (emphasis supplied). The defendant argues that, since the commission's vote did not refer to any "specific reasons" for the action taken, the vote must be set aside. This argument reads too much into the statute. General Laws c. 31, Section 2 (b), requires only that the "reasons" for the decision appear in the "records of the proceedings of the commission," not that they be referred to in the draft of the final vote taken. As nothing appears in the record before us to imply that the proceedings before the commission were defective, we will presume in favor of the regularity of the proceedings. See Co-Ray Realty Co. Inc. v. Board of Zoning Adjustment of Boston, 328 Mass. 103, 108.

The remaining question concerns the effect that must be given to the vote of the Civil Service Commission that the "reinstatement" of the plaintiff "be approved." In Caulfield v. Fire Commr. of Brookline, 336 Mass. 569, 572, this court found it "unnecessary to decide whether mere `approval' by the commission of his [petitioner's] reinstatement would require the respondent to reinstate him if the respondent decided not to fill any existing vacancy or if there were no vacancy to which the petitioner could be appointed . . . or whether the petitioner would then be merely eligible for reinstatement if a vacancy should later occur or should be later filled." General Laws c. 31, Section 46C, more fully set out in the margin, supra, contains the provision: "If the separation from service of such an officer or employee was due to illness, and the appointing authority fails to make a request for reinstatement upon demand of such officer or employee, the officer or employee may make a request for a hearing before the director. In either case, the director shall forthwith hold a hearing, hear all parties concerned,

Page 423

and render his decision." Unless this provision of the statute is to be deemed of "no force or effect," Gillam v. Board of Health of Saugus, 327 Mass. 621, 623, the appointing authority cannot ignore the decision of the director or the commission. The clear implication of the quoted section is that the judgment or action of the appointing authority may be reversed by the director, after a hearing, or by the commission, on appeal.

To compel the appointing authority to create a vacancy or to fill a present vacancy may impede a bona fide economy measure and unduly interfere with municipal executive officers. At the very least, however, the statute must be interpreted to grant the commission the right to order the plaintiff appointed to the first vacancy in the same class filled after the commission's decision. On March 28, 1960, after the defendant had notice of the decision of the Civil Service Commission, he appointed another individual to a vacancy in the position of fire fighter in the department. It follows that the plaintiff is entitled to reinstatement as of that date. A declaratory decree is to be entered in accordance with this opinion.

So ordered.