Leon Dykas was a police officer for the Worcester, Massachusetts Police Department. In 2008, Dykas was purported to have engaged in noncriminal misconduct involving his ex-wife in violation of a “Last Chance Settlement Agreement” into which he had entered with the Department. Dykas cooperated with the Department’s internal investigation and attended an investigatory interview at the Department’s Bureau of Professional Standards as ordered. The Police Chief then placed Dykas on administrative leave with pay.
Several months later, the city manager scheduled a mandatory pre-termination hearing pursuant to a Massachusetts state law covering tenured civil service employees. The city manager ordered Dykas to attend and to testify truthfully at the hearing.
Dykas appeared for the commencement of the hearing with counsel; however, Dykas left before the hearing concluded, failing to supply the requested testimony and leaving his attorney behind. For Dykas’s failure to comply with the order commanding his testimony, the Chief suspended Dykas for five tours of duty without pay. Dykas appealed this sanction. The City scheduled another hearing to determine whether Dykas’s failure to comply with O’Brien’s directive to testify at the hearing constituted a separate ground for dismissal. The hearing officer determined that Dykas’s failure to comply with the order to testify constituted just cause for Dykas’s suspension and dismissal. Adopting the hearing officer’s report, the City then terminated Dykas for his failure to testify.
A Massachusetts appeals court upheld a decision by the Massachusetts Civil Service Commission overturning Dykas’s termination. After a fairly lengthy recitation of the history of pre-disciplinary hearings in Massachusetts, the Court held that “tenured civil servants such as Dykas have a property interest in their employment, and must be afforded basic due process protections in suspension and disciplinary proceedings, including a pre-deprivation hearing. The statute requires a full hearing so that the employee may be provided with the reason or reasons for his termination – to which he is entitled. It is not intended to provide the appointing authority with an additional investigative venue once the decision to terminate employment or to sanction the employee has been made.
“The City has an opportunity, within statutory and constitutional limits, to collect evidence and develop its case via its internal departmental investigations. Once, however, the decision to seek termination was made, Dykas’s statutory and due process rights attached.”
The Court found that the decision of the Massachusetts Civil Service Commission that Dykas could not be disciplined for failing to testify at his pre-disciplinary hearing was not unreasonable. The Court noted that “the Commission was reasonable in its determination that Department rules and regulations could not serve to undermine the statute’s purpose. In addition, the Commission’s ruling did not intrude upon the City’s management rights. The rule here did not implicate a discretionary employment decision based upon merit, a policy consideration, or any mitigating factors.
“Unlike a true testimonial privilege, the Commission’s ruling did not preclude the City from drawing an adverse inference against Dykas for failing to testify. Nor did the Commission’s ruling preclude the Commission from considering such negative inference on appeal. The Commission did not exceed its authority. Accordingly, we conclude that the Commission’s determination that the City did not have just cause to suspend or terminate Dykas for failing to testify at his hearing is not arbitrary, capricious, or otherwise contrary to the law.”
City of Worcester v. Civil Service Commission, 2015 WL 789986 (Mass. App. 2015).