JEFFREY GODERE v. CITY OF CHICOPEE & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule
1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to
the parties and, therefore, may not fully address the facts of the case or the
panel's decisional rationale. Moreover, such decisions are not circulated to
the entire court and, therefore, represent only the views of the panel that
decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued
after February 25, 2008, may be cited for its persuasive value but, because of
the limitations noted above, not as binding precedent. See Chace v. Curran, 71
Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-134

JEFFREY GODERE

vs.

CITY OF CHICOPEE & another. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On November 2, 2018, appellant Jeffrey Godere, then a

sergeant in the Chicopee police department, was terminated from

the department for untruthful conduct during an internal affairs

investigation. He appealed his termination to the appellee

Civil Service Commission (commission), which is charged with

deciding whether there was just cause for a disciplinary action

taken against the employee. Just cause is defined in this

context to mean "substantial misconduct which adversely affects

the public interest by impairing the efficiency of the public

service." Doherty v. Civil Serv. Comm'n, 486 Mass. 487, 493

(2020), quoting Police Comm'r of Boston v. Civil Serv. Comm'n,

39 Mass. App. Ct. 594, 599 (1996). The commission conducted an

evidentiary hearing and issued a written decision on February

1 Civil Service Commission.
13, 2020. In that decision, the commission concluded that

Godere's conduct "was a violation of the rules and regulations

of the [Chicopee] Police Department regarding untruthfulness and

constituted substantial misconduct which adversely affected the

public interest." It further concluded, however, that several

factors in the case "warrant[ed] a modification of the penalty

imposed." Accordingly, the commission allowed Godere's appeal

in part, vacated his termination, and demoted him from the rank

of sergeant to the rank of police officer. Godere sought

judicial review in the Superior Court, under G. L. c. 30A, § 14,

arguing that he should not have been punished at all for his

untruthful conduct. 2 A judge of the Superior Court affirmed the

commission's decision, and this appeal followed.

Background. The facts underlying this dispute are well

known to all parties and will not be repeated here in detail.

We summarize the proceedings below and the relevant portions of

the commission's findings of fact. On August 26, 2011, Chicopee

2 The appellee city of Chicopee (city) argued before the Superior
Court judge that the commission erred in modifying the penalty
and that Godere's termination should be reinstated. The city
makes the same argument here. Because the city failed to file a
cross appeal, those arguments are waived. See Saugus v. Refuse
Energy Sys. Co., 388 Mass. 822, 831 (1983), quoting Boston
Edison Co. v. Boston Redev. Auth., 374 Mass. 37, 43 n.5 (1977)
("Although a party may defend a judgment on any ground asserted
in the trial court, failure to take a cross appeal precludes a
party from obtaining a judgment more favorable to it than the
judgment entered below").

2
officers, including Godere, responded to an apartment for a call

of an unresponsive person. A female, determined to be deceased,

apparently as a result of homicide, was discovered on the floor.

Using their cell phones, two officers took a picture of the

female and forwarded the photo to fellow police officers via

individual text messages. At the police station, one of the

officers who took the picture showed Godere the picture. Godere

asked that the officer send him the photo, and after receiving

the photo Godere forwarded the photo to another officer, denoted

in the proceedings below, and to whom we will refer here, as

Officer CL. CL showed the photo to multiple parents at a

sporting event the next day. One month later, the Chicopee

police department was made aware of the incident and

approximately four months later commenced an internal

investigation.

Four officers, including Godere, actively impeded the

internal investigation by lying to the investigator. When asked

about how he had received the photo of the female homicide

victim, Godere responded that he "receive[s] different pictures,

jokes and videos that people send me" and did "not recall who

sent [him] the picture." When asked whether he had sent the

photo of the female homicide victim to anyone else, Godere

responded "[a]gain, I receive different pictures, jokes and

videos on my phone. Some of those pictures, jokes and videos I

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forward to others. I do not recall if I sent this particular

picture to anyone." Both answers were untrue. Godere was

intentionally misleading the investigator because he was

concerned about being a "rat." Eventually, he told the

investigator the truth.

At the conclusion of the internal investigation, three of

the officers, including Godere, were charged with "incompetence"

for "failing to conform to work standards established for the

officers' position." CL was given three tours of punishment

duty; Godere and one other officer received a written warning.

Specifically, Godere was reprimanded for his improper use of a

cell phone during an ongoing investigation. None of the

officers were charged with untruthfulness.

Though the police chief had refrained from disciplining any

of the officers for untruthfulness, he did inform the district

attorney of the incident. The district attorney wrote to the

police chief that "[s]uch lack of honesty is very troubling. In

future court proceedings, I will be ethically obligated, under

mandatory discovery requirements, to produce this material when

relevant to the question of these officers' credibility." On

January 10, 2013, the district attorney issued a "Brady"

memorandum, derived from Brady v. Maryland, 373 U.S. 83 (1963),

to all assistant district attorneys, indicating that when either

Godere or CL was a potential witness in a case, the assistant

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district attorney should determine whether disclosure of the

officer's prior untruthfulness in the internal investigation

would be relevant as exculpatory material. Upon receiving the

"Brady" letter, the chief of police discussed with the mayor the

possibility of additional discipline for Godere and CL. They

decided against it. For four years after the "Brady" letter was

issued, no further administrative action related to the photo

incident was taken against Godere or CL. Godere was not even

made aware of the letter.

In 2017, however, Chicopee had a new mayor and a new chief

of police. Both eventually learned of the existence of the

"Brady" letter, and again the question of additional discipline

arose. This time, the question was answered in the affirmative.

The mayor issued Godere a notice of contemplated discipline, a

discipline hearing was held, and Godere was ultimately

terminated on November 2, 2018. On review, as described at the

outset, the commission modified Godere's penalty, ordering that

Godere instead be demoted from sergeant to police officer.

Discussion. We review the commission's decision to

determine whether "the substantial rights of any party may have

been prejudiced [because the commission decision] is based on an

error of law, unsupported by substantial evidence, or otherwise

not in accordance with the law." Spencer v. Civil Serv. Comm'n,

479 Mass. 210, 215 (2018) (quotation and citation omitted).

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Godere argues that the commission erred in upholding the

decision to discipline him. He argues that the determination

not to discipline him for untruthfulness reached at the end of

the initial internal investigation cannot be revisited years

later by a subsequent administration. He argues that it is

contrary to the purpose of the civil service system to allow the

election of a new mayor or the appointment of a new police chief

to result in the reversal of prior decisions not to discipline a

permanent, tenured civil service employee based upon the same

information that was available to their predecessors.

Of course, "'[t]he fundamental purpose of the civil service

system is to guard against political considerations, favoritism,

and bias in governmental hiring and promotion.' Massachusetts

Ass'n of Minority Law Enforcement Officers v. Abban, 434 Mass.

256, 259 (2001). It also is designed to 'protect efficient

public employees' from partisanship and arbitrary punishment.

Murray v. Second Dist. Court of E. Middlesex, 389 Mass. 508, 514

(1983), quoting Debnam v. Belmont, 388 Mass. 632, 635 (1983).

See Dedham v. Labor Relations Comm'n, 365 Mass. 392, 396-397

(1974)." Fernandes v. Attleboro Hous. Auth., 470 Mass. 117, 123

(2014). But Godere points to no statute, regulation, or

decision that disempowers a newly elected or appointed official

from re-examining a decision of their predecessor not to

discipline a civil service employee even though they act

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otherwise lawfully. Nor does Godere point to any statute of

limitations or other source of law under which discipline for

his untruthfulness came too late.

He argues next that the commission's decision violates

principles of "industrial double jeopardy," see Zayas v. Bacardi

Corp., 524 F.3d 65, 68 (1st Cir. 2008), because the city

penalized him "twice for the same infraction." Id. at 69. But,

assuming what we need not decide, that industrial double

jeopardy principles apply, Godere's invocation of them is

inapposite. He was reprimanded in 2012 for his improper "use of

a cell phone during an ongoing investigation." But he was

terminated in 2018 because he was found to have been untruthful

and to have "impeded th[e] investigation" into his improper use

of the cell phone. These thus are not two punishments for the

"same infraction" or, as he also puts it, quoting Heier v. North

Dakota Dep't of Corrections & Rehabilitation, 820 N.W.2d 394,

399 (N.D. 2012), "one instance of misconduct."

Finally, he argues that he has been treated differently

than two other officers, who were found to have been similarly

untruthful in the internal affairs investigation but have since

been promoted. Godere raised his concerns about unequal

treatment with the commission, which relied upon them in

modifying the penalty. Although we express no opinion on the

propriety of those modifications, see note 2, supra, we have

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observed that the commission's "power to modify penalties

permits the furtherance of uniformity and the equitable

treatment of similarly situated individuals. It must be used to

further, and not to frustrate, the purpose of civil service

legislation, i.e., 'to protect efficient public employees from

partisan political control.' Debnam[,] 388 Mass. [at 635]. It

is not to be used 'to prevent the removal of those who have

proved to be incompetent or unworthy to continue in the public

service.' Cullen v. Mayor of Newton, 308 Mass. 578, 581 (1941)."

Police Comm'r of Boston v. Civil Serv. Comm'n, 39 Mass. App. Ct.

594, 600 (1995). By contrast, Godere points to no case law, and

we know of none, that holds that the department's failure, even

wrongful failure, to discipline officers who committed similar

improper acts grants an officer immunity from a commission

determination that there was just cause for disciplinary action

against him.

As the commission decision was supported by substantial

evidence, and Godere has shown neither legal error nor that the

decision was not in accordance with law, the judgment of the

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Superior Court affirming the decision of the commission will be

affirmed.

Judgment affirmed.

By the Court (Meade, Rubin &
Blake, JJ. 3),

Clerk

Entered: August 9, 2023.

3 The panelists are listed in order of seniority.

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