BRIAN SWEET v. MASSACHUSETTS CIVIL SERVICE COMMISSION & 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

24-P-34

BRIAN SWEET

vs.

MASSACHUSETTS CIVIL SERVICE COMMISSION & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a judgment of the Superior Court

upholding a 2017 amended decision (2017 decision) of the Civil

Service Commission (commission) to rescind the relief granted in

an earlier 2013 decision. The commission's 2013 decision had

modified the penalty imposed by the Massachusetts Department of

State Police (MSP) against the plaintiff from a dishonorable

discharge to a sixty-day suspension. The 2017 decision

rescinded the 2013 decision and dismissed the plaintiff's appeal

nunc pro tunc, the effect of which was to reimpose the original

penalty of discharge imposed by the MSP. On appeal, the

plaintiff claims that the judge erred in denying his motion for

1 Massachusetts Department of State Police.
judgment on the pleadings and allowing the defendants' cross

motion because (1) the commission abused its discretion in

reopening the 2013 decision; (2) G. L. c. 31, § 43, mandates

reversal of the MSP's disciplinary action in the absence of a

finding of just cause for the plaintiff's termination; and (3)

the commission deprived the plaintiff of his right to due

process by providing insufficient notice in connection with the

reopening of the 2013 decision.2 We affirm.

Discussion. 1. The reopening of the 2013 decision. The

plaintiff claims the commission abused its discretion in

reopening its 2013 decision.3 Specifically, the plaintiff,

citing Soe v. Sex Offender Registry Bd., 466 Mass. 381, 396

(2013), contends that the commission failed to consider whether

the 2013 decision "substantially relied on [evidence] . . .

2 The plaintiff also claims that the judge erred in denying
his petition for reinstatement as moot. Because we conclude
that the commission did not abuse its discretion in reopening
its 2013 decision, and was not required under G. L. c. 31, § 43,
to reverse the disciplinary action imposed by the MSP, we need
not address the issue of mootness. Likewise, we need not
address the plaintiff's argument that the judge improperly
considered materials outside the administrative record in her
mootness inquiry.
3 The plaintiff's brief often directs its arguments toward

the rulings of the Superior Court judge. However, our review of
the commission's decision is de novo. See Merriam v. Demoulas
Super Mkts., Inc., 464 Mass. 721, 726 (2013), citing Wheatley v.
Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 600
(2010) ("We review de novo a judge's order allowing a motion for
judgment on the pleadings under Mass. R. Civ. P. 12 [c], 365
Mass. 754 [1974]"). Accordingly, we direct our analysis to a
review of the decision of the commission.

2
subsequently demonstrated to be false, inaccurate, or utterly

unreliable." We disagree.

"An administrative agency, in the absence of statutory

limitations, generally has the inherent authority to reconsider

a decision or reopen a proceeding to prevent or mitigate a

miscarriage of justice." Soe, 466 Mass. at 395. Contrary to

the plaintiff's interpretation of Soe, the Supreme Judicial

Court has clarified that, "[i]n Soe, we noted that a miscarriage

of justice may occur for many reasons, including when the board

substantially relies on evidence that was later demonstrated to

be false." Doe, Sex Offender Registry Bd. No. 209081 v. Sex

Offender Registry Bd., 478 Mass. 454, 457 n.7 (2017). In other

words, an agency's reliance on false, inaccurate, or utterly

unreliable information is sufficient to justify the reopening of

a closed decision, but is not necessary. See id. While an

agency's inherent authority to reopen closed proceedings "must

be sparingly used," id. at 457-458, quoting Soe, supra at 395,

and "the mere availability of additional evidence is

insufficient for its use" (citation and quotation omitted), Soe,

supra at 395, it may be used "in compelling situations as

justice may require." Covell v. Department of Social Servs., 42

Mass. App. Ct. 427, 433 (1997).

3
An agency's exercise of this authority is "reviewable only

for an abuse of discretion."4 Soe, 466 Mass. at 396. "When

reviewing an agency's decision for abuse of discretion, we look

to see whether the decision was reasonable." Doe, Sex Offender

Registry Bd. No. 209081, 478 Mass. at 457.

At the time of the 2013 decision, the administrative record

included a letter dated October 28, 2010, from Colonel McGovern

of the MSP to the plaintiff, informing the plaintiff of the

Colonel's decision, pursuant to G. L. c. 140, § 131 (f), to

revoke the plaintiff's firearms license (LTC). However, the

record did not include information regarding the amount of time

that the plaintiff would remain ineligible to obtain an LTC

(e.g., the expiration date of the revoked LTC). The commission

therefore did not merely apply "fresh judgment or an altered

substantive policy to an otherwise closed proceeding." Aronson

v. Brookline Rent Control Bd., 19 Mass. App. Ct. 700, 704-705

(1985). In light of the greater-than-three-year period in which

the plaintiff became ineligible to obtain an LTC, the holding of

4 Here, the plaintiff claims that the abuse of discretion
analysis must be particularly "exacting," as the commission, at
the time of its reopening of the 2013 decision, was engaged in
ongoing litigation against the plaintiff. In support of his
position, the plaintiff cites Stowe v. Bologna, 32 Mass. App.
Ct. 612, 616 (1992), S. C. 415 Mass, 20 (1993). However, the
cited text supports only the general proposition that an
administrative agency's inherent authority to reopen a decision
should be used sparingly, so as to promote finality and
reliability. See id.

4
which is required of State troopers under the Department of

State Police Rules & Regulations, and the return to service

requirements following a separation from service exceeding three

years, the commission acted reasonably, and did not abuse its

discretion, in determining that the 2013 decision's apparent

contravention of the aforementioned rules amounted to a

compelling circumstance that justified its reopening. See

Covell, 42 Mass. App. Ct. at 433.

2. Just cause for disciplinary action. The plaintiff next

claims that the commission's 2017 decision was erroneous because

G. L. c. 31, § 43, as interpreted in Brookline v. Alston, 487

Mass. 278, 306 (2021), mandates reversal of the MSP's

disciplinary action against the plaintiff in the absence of a

finding, within the 2013 decision, of just cause for the

plaintiff's termination.5 We disagree.

5 In relevant part, § 43 states, "If the commission by a
preponderance of the evidence determines that there was just
cause for an action taken against such person it shall affirm
the action of the appointing authority, otherwise it shall
reverse such action and the person concerned shall be returned
to his position without loss of compensation or other rights;
provided, however, if the employee, by a preponderance of
evidence, establishes that said action was based upon harmful
error in the application of the appointing authority's
procedure, an error of law, or upon any factor or conduct on the
part of the employee not reasonably related to the fitness of
the employee to perform in his position, said action shall not
be sustained and the person shall be returned to his position
without loss of compensation or other rights. The commission
may also modify any penalty imposed by the appointing
authority." G. L. c. 31, § 43.

5
Contrary to the plaintiff's contention, and as the Superior

Court judge correctly reasoned, § 43 does not require a finding

of just cause for the specific penalty imposed by the appointing

authority, but rather for disciplinary action to be taken. See

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

594, 599 (1995). The commission, in its 2013 decision, did not

find that just cause was lacking for disciplinary action; it

merely exercised its discretionary authority under § 43 to

modify the penalty imposed.6 We agree with the judge's

conclusion that the 2017 decision to rescind the modified

penalty did not result in a violation of § 43.

3. Due process. Finally, the plaintiff claims that the

commission's 2017 decision deprived him of his right to due

process. Specifically, the plaintiff contends (1) that he had a

"protected property right in continued public employment absent

termination for just cause," and (2) because the 2017 order to

6 The plaintiff cites to two statements in the 2013 decision
in support of his position that such decision found an absence
of "just cause" under § 43: (1) "The Massachusetts State Police
did not establish just cause to terminate Tpr. Sweet," and (2)
"[the evidence] cannot justify [Tpr. Sweet's] dishonorable
discharge." However, these statements do not use the terms
"just cause" and "justify" in the statutory sense. As
discussed, supra, § 43 mandates the reversal of an appointing
authority's disciplinary action when just cause is lacking for
disciplinary action; the inquiry is not penalty specific. See
Police Comm'r of Boston, 39 Mass. App. Ct. at 599. Accordingly,
the statements above, which specifically address the plaintiff's
termination, do not trigger § 43.

6
show cause did not "mention [the plaintiff's] disciplinary,

legal, or other history as a basis on which the [c]omission

might rescind the earlier-granted relief," the plaintiff was not

given proper notice of the agency's action, nor an opportunity

to be heard on the above issues.

The factual premise underlying the plaintiff's argument is

inaccurate. Contrary to the plaintiff's claim, the 2017

decision did not rest on this purported "'second' real reason

for reopening the case." In reaching its 2017 decision, the

commission reasoned that the plaintiff's "[LTC] ineligibility

coupled with his involuntary separation from employment rendered

[the plaintiff] incapable of performing the essential functions

of his former State Trooper position for a length of time

(exceeding three years) that precludes unfettered

reinstatement." As the 2017 decision was based solely on the

duration of the plaintiff's ineligibility to perform an

essential job function, and not on his "disciplinary, legal, or

other history,"7 the absence of information regarding the latter

in the 2017 order to show cause has no bearing on such order's

7 Notably, the plaintiff's contention that "this was a major
basis on which the [c]omission actually justified . . . its
decision," lacks an accompanying record citation.

7
fulfillment of the commission's procedural due process

obligations.

Judgment affirmed.

By the Court (Meade,
Desmond & D'Angelo, JJ.8),

Clerk

Entered: March 7, 2025.

8 The panelists are listed in order of seniority.

8