In a decision released March 27, 2018, the Supreme Judicial Court held that the right of a middle or upper level state manager to revert to a previously-held civil service position under G.L. c. 30, § 46D applies only to involuntary terminations, not to voluntary resignations.
The case, Spencer v. Civil Service Commission, SJC-12326, involved the former Commissioner of Correction, who voluntarily resigned from his position in July 2014. Upon his resignation, the commissioner asked that he be allowed to revert to his last tenured civil service position, a position he had not held in over 20 years. The reversion would have significantly enhanced his retirement benefits. After his request was denied by the Secretary of the Executive Office of Public Safety & Security, the former commissioner filed an appeal with the Civil Service Commission (“Commission”). The Commission dismissed the case, and the former commissioner thereafter sought judicial review. The SJC took the case on its own motion.
G.L. c. 30, § 46D permits an individual who holds a middle or upper level management position with the Commonwealth to revert or “bump” back to the tenured civil service position from which he or she was promoted upon “termination of his [or her] service.” The phrase “termination of his [or her] service” is not defined in the statute and, prior to this decision, its meaning was unsettled.
The SJC concluded that the phrase refers only to involuntary terminations. In reaching its decision, the court noted the legislative history surrounding the 1981 overhaul of the civil service scheme, as well as relevant Commission precedent. Both factors supported a finding that the reversion or “bumping” right available to state managers under G.L. c. 30, § 46D was limited solely to involuntary terminations.
The court rejected the former commissioner’s argument that he was entitled to revert back to his former civil service position under G.L. c. 30, § 46D due to the Department of Correction’s long-standing practice of allowing upper level managers to revert to their prior civil service positions shortly before retirement. The court noted that this practice allowed the managers to significantly enhance their retirement benefits at the expense of the “bumped” lower level employees and that such contrived or “sham” reversions are illegal under the state pension law. The SJC wrote: “G.L. c. 30, § 46D, was not designed to permit a high-level manager to voluntarily resign and revert, particularly when he does so for the purpose of attaining enhanced retirement benefits designed for a hazardous employment position he has not occupied in twenty-five years. Instead, § 46D is designed to provide managers involuntarily terminated the right to revert to continue their public service.”
Lastly, the court reiterated its previous ruling that an employee’s resignation is voluntary absent a showing of fraud, coercion, or duress. It also affirmed the Commission’s consistently held rule that “mere evidence that a resignation was made under threat of discharge or discipline is not enough” to establish coercion or duress.
While the ruling in Spencer is limited to state managers’ rights to reversion under G.L. c. 30, § 46D, it highlights the need for municipal employers to comply with the requirements of the civil service law, G.L. c. 31, when promoting a tenured civil service employee to a non-civil service position.
Section 37 of the civil service statute discusses the circumstances in which an appointing authority may authorize leaves of absence to permanent civil service employees. For example, a leave of absence for a period up to 14 days is at the discretion of the appointing authority, while a leave of absence for a period greater than 14 days must be in writing and only after a written request for such leave by the employee. Any leave of absence greater than three months requires prior approval of the Human Resources Division. Without such approval, the employee runs the risk of not being able to return to his or her prior civil service position at the end of such leave.
Please contact any of our attorneys if you have any questions about how this decision may impact you or if you have any other questions regarding civil service law or other labor and employment matters.
This update is provided for informational purposes only and should not be considered legal advice.