Mass Appeals Court Confirms That Police Officer Cannot Be Terminated For Failure to Testify At Civil Service Hearing

A Massachusetts civil service employee is entitled to a hearing prior to being suspended or terminated. This right is reflected in General Laws Chapter 31, Section 41. Nearly all city employees and many police officers and fire fighters employed by towns are protected by civil service. Section 41 guarantees that an employee facing discipline will receive notice and an explanation of the charges prior to the hearing and an opportunity at a hearing to respond personally or through counsel to the charges. This statute is consistent with the constitutional protections afforded to public employees who have completed their probationary period and face termination.

In the attached case, the City of Worcester terminated a police officer for, in part, refusing to testify at his disciplinary hearing. The officer was charged with violating a "Last Change Agreement" that allowed the City to terminate him if he engaged in further misconduct involving his exwife or her friends. The officer appealed to the Civil Service Commission, which reversed the termination. Today, the Appeals Court affirmed the decision, ruling that a pre-termination hearing is intended as a right of due process for employees, and not a right of employers to continue its investigation. The Appeals Court agreed with the Commission that termination or discipline was not justified by the officer's decision not to testify .

The Appeals Court ruled that while an employee's failure to testify cannot support termination by itself, a public employer remains free to discipline the employee for the alleged misconduct and to draw a negative inference from the officer's decision not to defend himself.

This decision, incidentally, did not address the protections against self-incrimination under 5th Amendment of the US Constitution (known as Garrity right) and Article 12 of the Massachusetts Declaration of Rights (known as Carney right).

The Appeals Court victory provides limited benefit to the police officer. The City separately terminated the officer for the underlying misconduct, which was affirmed by an arbitrator.