BOARD OF SELECTMEN OF DARTMOUTH vs. THIRD DISTRICT COURT OF BRISTOL & another.

SPIEGEL, J. This is a petition for a writ of certiorari brought by the board of selectmen of the town of Dartmouth (board) against the Third District Court of Bristol and against the respondent Maurice A. Stebenne to set aside the findings and decision of a judge of that court regarding the removal from office of Stebenne, a sergeant in the police force of the town. Stebenne, filed a demurrer [Note 1] and an answer [Note 2] to the petition. At the request of the parties a single justice of this court reserved and reported the case without decision.

The board initiated proceedings under G. L. c. 31, Section 43, to determine whether Stebenne was guilty of conduct unbecoming a police officer. The board, after notice and a hearing, concluded that he was guilty and he was discharged from the police force. Stebenne then requested a hearing before the civil service commission (commission). [Note 3] The hearing officer made findings and recommended that the action of the board be affirmed. The commission adopted the findings of the hearing officer and affirmed the board's action. Stebenne then filed a petition with the District Court under G. L. c. 31, Section 45, for review of the decision of the board and the commission. The only evidence presented

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to the judge of that court was the record of the hearing held before the commission. The judge made a rather extended "Finding" and stated that "upon reviewing the evidence . . . [I] find that the Appointing Authority [the board] and the Commission . . . [have] not acted with an `unbiased and reasonable' judgment, and . . . that the discharge was made `without proper cause.'" He concluded his "Finding" by asserting that "[o]n all the evidence as reviewed . . ., I find that the action of the . . . Authority and the Commission [must] be reversed and the petitioner reinstated . . . without loss of compensation."

The scope of review contemplated by G. L. c. 31, Section 45, as amended through St. 1955, c. 407, Section 2, [Note 4] was recently discussed in the case of Commissioner of Civil Serv. v. Municipal Court of the City of Boston, ante, 211, 214-215. We quoted at length from the leading case of Sullivan v. Municipal Court of the Roxbury Dist. 322 Mass. 566, 573, wherein it is said that review "`does not import a reversal of the earlier decision honestly made upon evidence which appears to an unprejudiced mind sufficient to warrant the decision made although of a character respecting the weight of which two impartial minds might well reach different conclusions, and upon which the reviewing magistrate, if trying the whole issue afresh, might make a different finding.' . . . [citing cases]."

In conducting a review under G. L. c. 31, Section 45, it is clear from the Sullivan case that it is the responsibility of a District Court judge to determine whether the action taken by the civil service commission and the appointing authority was "justified" upon all of the evidence. "`Justified' in connection with `review' means `done upon adequate

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reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind, guided by common sense and by correct rules of law.'" Sullivan v. Municipal Court of the Roxbury Dist., supra, at p. 573. Where the judge only reviews the record of the testimony which has been presented orally to the officer who had conducted the hearing, "[f]indings based on oral testimony will not be reversed unless plainly wrong. `The reason for this rule is that the . . . [officer] who has heard the testimony and seen the witnesses face to face has a better opportunity for determining the credibility of their conflicting statements than can possibly arise from reading a record; he "has a great advantage in the search for truth over those who can only read their written or printed words." . . . [citing cases]."' Mayor of Beverly v. First Dist. Court of Essex, 327 Mass. 56, 61.

In the instant case, we think no purpose would be served in reciting the evidence before the hearing officer. In his "Finding," the District Court judge stated that two of the subsidiary findings of the hearing officer, which tended to indicate that Stebenne was guilty of conduct unbecoming an officer, were "pure conjecture," and that he viewed certain testimony by two witnesses about admissions by Stebenne "with a jaundiced eye." He characterized one of the witnesses as a "crony" and "wonder[ed] as to the credibility of the testimony."

In questioning the credibility of witnesses, the judge did not confine himself to whether the findings of the hearing officer were supported by the evidence. Mayor of Beverly v. First Dist. Court of Essex, supra. We have examined the record and applying the principles of Sullivan v. Municipal Court of the Roxbury Dist., supra, we conclude that the judge's findings amount to error of law. Commissioner of Civil Serv. v. Municipal Court of the City of Boston, ante, 211, 216. We have considered the grounds set forth in the demurrer and find that they are without merit. In view of our determination that the judge erred in applying an improper standard of review, other issues raised in the brief need not be discussed.

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In the county court an order shall enter overruling the demurrer, and judgment is to enter setting aside the decision of the District Court and directing that the action of the board and commission be affirmed.

So ordered.