Civil Service Commission Tie Goes to the Hearing Officer

In McGuinness v. Department of Correction (July 1, 2013), the Supreme Judicial Court decided that in the rare instance where the Civil Service Commission vote is tied, the decision of the hearing officer becomes the final decision. The Civil Service Commission has five members. It frequently delegates the fact finding and preliminary functions to a hearing officer. The hearing officer then presents a proposed decision to the Commission. The Commission votes, with a majority deciding whether to affirm, modify or reverse the hearing officer's decision. The employer or employee then can appeal this decision.

On occasion, not all five Commissioners can vote on a case. A member may be unavailable or may be recused for a possible conflict. If the remaining four votes are split, then the hearing officer's proposed decision becomes the final decision. In the McGuinness case, the hearing officer agreed with the employer's decision to terminate the employee. The Commission then deadlocked 2-2. The Hearing Officer's decision therefore became the one reviewed on appeal. The same result would happen if the opposite occurred - if the hearing officer recommended reinstatement, then the employee would be reinstated, absent court intervention.

As to the substance of the appeal, the SJC agreed with the employer and the hearing officer that there was sufficient evidence that McGuinness used excessive force against an inmate and may be terminated for same.