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SJC-11540

CITY OF SPRINGFIELD vs. CIVIL SERVICE COMMISSION & another.1

Hampden. April 8, 2014. - August 18, 2014.

Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, 

& Lenk, JJ.2

Civil Service, Provisional promotion, Termination of employment, 

Notice. Labor, Civil service. Employment, Termination.

Jurisdiction, Civil Service Commission. Administrative 

Law, Evidence. Notice, Termination of employment, 

Administrative hearing. Waiver.

Civil action commenced in the Superior Court Department on 

July 29, 2010.

The case was heard by Bertha D. Josephson, J. on motions 

for judgment on the pleadings.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Maurice M. Cahillane, Jr. (William E. Mahoney with him) for 

city of Springfield.

Andrew M. Batchelor, Assistant Attorney General, for Civil 

Service Commission.

Bart W. Heemskerk for Joseph McDowell.

 

1 Joseph McDowell.

2 Chief Justice Ireland participated in the deliberation on 

this case prior to his retirement.
2

BOTSFORD, J. Joseph McDowell was hired by the city of 

Springfield (city) in 1987 as a skilled laborer, and soon 

thereafter achieved the status of a permanent, tenured civil 

service employee of the city. In 1993, he received the first of 

two provisional promotions;

3 he worked in the second of these 

provisional positions until 2005, when the city terminated his 

employment. One issue we consider in this appeal is whether,

despite being terminated from his provisional position, McDowell 

was entitled to appeal his termination pursuant to the relevant 

provisions of the civil service statute, G. L. c. 31, §§ 41–45; 

agreeing with the Civil Service Commission (commission), we 

conclude that he was. We also consider whether the commission, 

in deciding McDowell's appeal, permissibly could consider that 

subsequent to the city's discharge of McDowell, he had been

indicted and then pleaded guilty to the crime of filing false 

tax returns. We decide that in the particular circumstances of 

this case, the commission was permitted to take the criminal 

proceeding against McDowell and its disposition into account, 

 

3 A provisional employee is an employee in a civil service 

position who does not hold the position on a permanent basis, 

i.e., without any restrictions on duration of the employment. 

See G. L. c. 31, § 1 (§ 1) (defining "[p]rovisional employee" 

and "[p]ermanent employee"). A civil service employee may 

receive a provisional promotion pursuant to c. 31, § 15. Like a

provisional employee, a provisionally promoted employee is not 

appointed on a permanent basis, and does not have tenure in the 

provisional promotion. See G. L. c. 31, § 1 (defining

"[t]enured employee").
3

but that McDowell's indictment for filing false tax returns did 

not qualify as an indictment "for misconduct in [McDowell's] 

. . . employment" within the meaning of G. L. c. 268A, § 25, and 

thus a suspension based on the indictment would not have been 

valid.

1. Background. McDowell began working as a skilled 

laborer for the city in 1987. In 1989, he was promoted to the 

position of carpenter within the city's civil service system. 

After completing his probationary period, McDowell became a 

tenured employee in this position on a permanent basis, and 

served as such until 1993. That year, McDowell was 

provisionally promoted to the position of assistant deputy of 

maintenance, and the next year, 1994, he was again provisionally 

promoted to become the deputy director of maintenance (deputy 

director) within the then-named facilities management department 

of the city. The position of deputy director included 

responsibility for assigning work to approximately forty 

tradesmen and skilled laborers, interacting with private 

vendors, and responding to emergencies.

On January 25, 2005, the city sent McDowell a notice of 

suspension, informing him that he was being suspended without 

pay from his duties as deputy director for five days, for 

inappropriate personal use of city property and for conducting 
4

private business during working hours.4 The city held a two-day 

disciplinary hearing and on April 15, 2005, issued a letter to 

McDowell notifying him that his employment with the city had 

been terminated. On April 22, McDowell filed an appeal with the 

commission. The commission referred the case to the division of 

administrative law appeals (DALA), and a DALA magistrate 

conducted a full evidentiary hearing on December 18, 2006. At 

the hearing, the city made an oral motion to dismiss McDowell's 

appeal, arguing that because McDowell was appointed 

provisionally to his position as deputy director, the commission 

did not have jurisdiction to hear the appeal. The magistrate 

ultimately agreed and on August 17, 2007, recommended to the 

commission that McDowell's appeal be dismissed for lack of 

jurisdiction. Almost two and one-half years later, on 

February 12, 2010, the commission issued an interim decision 

rejecting the magistrate's recommendation to dismiss the appeal 

and concluding that an employee who held a tenured civil service 

position and who, while in such tenured position, is 

provisionally promoted to a different position from which he is 

later terminated, has the right to appeal to the commission to 

challenge the just cause for his termination under G. L. c. 31, 

 

4 Since 1994, McDowell was the sole proprietor of a company 

named McDowell and Sons, and in that capacity worked as a 

contractor, designing and installing kitchens.
5

§ 41.5 On May 6, 2010, the commission issued a final decision on 

McDowell's appeal and concluded that although the city was 

justified in disciplining McDowell on account of the use of city 

property in connection with his private business, there was not 

just cause to terminate his employment. The commission modified 

the termination, reducing it to a nineteen-month suspension to 

run from April 15, 2005, to November 15, 2006;

6 thereafter, 

McDowell was to be deemed reinstated to his permanent civil 

service position of carpenter.

On April 13, 2007, while McDowell's appeal from his 

termination was pending before the commission but before it had 

been decided, McDowell was indicted for violation of 26 U.S.C. 

§ 7206(1) (2006) (filing false return under oath),7 and 

 

5 In the same decision, the Civil Service Commission 

(commission) also determined that the one-year contract between 

McDowell and the city of Springfield (city), dated July 1, 2001, 

in which McDowell purported to agree that the provisional 

position he held was not subject to the civil service law or any 

collective bargaining agreement, was unenforceable because 

against public policy. The city wisely does not challenge this 

determination on appeal, and we do not discuss it further.

6 The commission's final decision contained a typographical 

or scrivener's error with respect to the end date of McDowell's 

suspension, which the commission subsequently corrected. There 

is no disagreement that the end date was to be November 15, 

2006.

7 The city and the commission refer to the statute under 

which McDowell was indicted as 26 U.S.C. § 2706(1). There is no 

statute designated as 26 U.S.C. § 2706. We assume the reference 

is intended to refer to 26 U.S.C. § 7206(1).
6

subsequently pleaded guilty on November 27, 2007.8 Eight days 

after the issuance of the commission's final decision of May 6, 

2010, the city filed a motion for reconsideration, requesting 

the commission to consider McDowell's indictment and conviction.9 

The city argued that if McDowell had still been working for the 

city at the time of his April, 2007, indictment -- which he 

would have been pursuant to the commission's subsequent decision 

imposing a nineteen-month suspension that would have ended 

November 15, 2006 -- the city would have suspended McDowell 

pursuant to G. L. c. 268A, § 25, upon his indictment, and would 

have terminated him under G. L. c. 31, § 50, upon his 

conviction.

10 McDowell opposed the motion. On March 24, 2011, 

the commission allowed the city's motion in part, concluding 

that the city would have suspended McDowell without pay on 

April 13, 2007; would have terminated him effective November 27, 

2007; and would have had just cause to take both actions. The 

commission also modified its original determination that a 

nineteen-month suspension was to be imposed, ruling that the 

 

8 The indictment charged McDowell with filing false income 

tax returns for the years 2001 through 2005.

9 The city apparently raised the issue of including evidence 

of McDowell's indictment for and subsequent conviction of tax 

fraud at a prehearing conference in the case, but was instructed 

not to raise this issue before the commission issued its final 

decision, but, if necessary, to raise it through a motion for 

reconsideration.

10 We discuss both of the cited statutes, infra.
7

suspension should have been for six months. As a consequence of 

this modification, the commission's decision created a 

reinstatement period for McDowell between October 16, 2005, and

April 13, 2007.

Both the city and McDowell sought judicial review of the 

commission's decision pursuant to G. L. c. 30A, § 14. In May, 

2012, a judge in the Superior Court denied both parties' motions 

for judgment on the pleadings and affirmed the decision of the 

commission. The judge ruled that (1) the commission had 

reasonably interpreted G. L. c. 31, § 41, to permit an employee

such as McDowell, who held a tenured civil service position but 

then accepted a provisional promotion, to appeal his termination 

to the commission; and (2) the city was entitled to suspend

McDowell under G. L. c. 268A, § 25, upon his indictment on 

April 13, 2007, and thereafter entitled to discharge him 

pursuant to G. L. c. 31, § 50, upon his conviction on 

November 27, 2007. McDowell and the city both appealed the 

judge's decision to the Appeals Court, and we transferred the 

case to this court on our own motion.

2. Discussion. The city's appeal raises a single issue, 

the correctness of the commission's, and the judge's, 

determination that although McDowell was terminated from his 

employment in a position to which he was appointed only 

provisionally and in which he was not tenured, nonetheless he 
8

was entitled to appeal his termination to the commission. 

McDowell agrees with the commission on this issue and raises 

separate issues in his appeal: (1) the commission should not 

have considered his 2007 indictment and conviction at all in

connection with his appeal from the city's 2005 termination 

decision because these events occurred long after the city 

terminated him; (2) in any event, the commission erred in 

concluding the city permissibly could suspend him pursuant to 

G. L. c. 268A, § 25, on account of his indictment; and (3) his

termination based on his conviction was improper and should be 

deemed void because the city, in violation of his statutory due 

process rights set out in G. L. c. 31, § 41, never gave him 

proper notice of this alleged basis for termination, or an 

opportunity for a hearing on it. We consider the city's and 

McDowell's claims separately, and in turn.

a. Effect of a provisional promotion on a tenured civil 

service employee's right to appeal to the commission. The city 

contends that McDowell was not entitled to appeal the 

termination of his employment as deputy director to the 

commission under G. L. c. 31, §§ 41-45. We disagree.

Pursuant to G. L. c. 31, §§ 41 (§ 41) and 43 (§ 43),

11 a

civil service "tenured employee" may be terminated only for just 

 

11 General Laws c. 31, § 41 (§ 41), provides in pertinent 

part:
9

 

"Except for just cause and except in accordance with 

the provisions of this paragraph, a tenured employee shall 

not be discharged, removed, [or] suspended for a period of 

more than five days . . . . Before such action is taken, 

such employee shall be given a written notice by the 

appointing authority, which shall include the action 

contemplated, the specific reason or reasons for such 

action and a copy of [G. L. c. 31, §§ 41-45], and shall be 

given a full hearing concerning such reason or reasons 

before the appointing authority or a hearing officer 

designated by the appointing authority. . . .

". . .

"If it is the decision of the appointing authority, 

after hearing, that there was just cause for an action 

taken against a person pursuant to the first . . . 

paragraph[] of this section, such person may appeal to the 

commission as provided in [G. L. c. 31, § 43]."

General Laws c. 31, § 43 (§ 43), in turn, provides in 

relevant part:

"If a person aggrieved by a decision of an appointing 

authority made pursuant to [§ 41] shall, within ten days 

after receiving written notice of such decision, appeal in 

writing to the commission, he shall be given a hearing 

before a member of the commission or some disinterested 

person designated by the chairman of the commission. . . .

"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 

the 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 
10

cause and in accordance with certain procedural protections 

including written notice, a hearing, and an opportunity to 

appeal to the commission. A "tenured employee" is defined as 

one "who is employed following (1) an original appointment to a 

position on a permanent basis and the actual performance of the 

duties of such position for the probationary period required by 

law or (2), a promotional appointment on a permanent basis." 

G. L. c. 31, § 1 (§ 1).

The city reads this definition as indicating that McDowell, 

who had been promoted provisionally to the position of deputy 

director, held a "promotional appointment" but not on a 

permanent basis, and therefore was not a "tenured employee" at 

the time the city terminated him. Therefore, it argues, the 

protections that §§ 41 and 43 afford tenured employees, 

including the right to appeal to the commission, were not 

available to McDowell. The commission advances a different 

interpretation, contending that the definition of "tenured 

employee" in § 1 describes two separate and independent 

categories of tenured civil service employees, and if a person 

(such as McDowell) meets the qualifications of the first 

category -- i.e., he receives "an original appointment to a 

[civil service] position on a permanent basis" and completes the 

 

compensation or other rights. The commission may also 

modify any penalty imposed by the appointing authority."
11

probationary period -- nothing in the language or structure of 

§ 1 suggests that he loses the "tenured employee" status if he 

is later provisionally promoted. Rather, the commission states, 

as a "tenured employee," such a person is entitled to the 

procedural protections of §§ 41 and 43, including the right to 

appeal an appointing authority's termination decision to the 

commission. In the commission's view, interpreting the statute

in this manner is necessary to protect the loss of an employee's 

tenured status through no fault of his own.

Great weight is given to a "reasonable construction of a 

regulatory statute adopted by the agency charged with . . .

[its] enforcement." School Comm. of Springfield v. Board of 

Educ., 362 Mass. 417, 441 n.22 (1972), quoting Investment Co. 

Inst. v. Camp, 401 U.S. 617, 626-627 (1970). A reviewing court 

"must apply all rational presumptions in favor of validity of 

the administrative action and not declare it void unless its 

provisions cannot by any reasonable construction be interpreted 

in harmony with the legislative mandate." Middleborough v. 

Housing Appeals Comm., 449 Mass. 514, 524 (2007), quoting Zoning 

Bd. of Appeals of Wellesley v. Housing Appeals Comm., 385 Mass. 

651, 654 (1982). However, an administrative interpretation will 

not be followed if it is contrary to the "plain and unambiguous 

terms . . . [in] a statute." School Comm. of Springfield, 

supra, quoting Bolster v. Commissioner of Corps. & Taxation, 319 
12

Mass. 81, 86 (1946). The burden of proving the invalidity of an 

administrative action rests with the party challenging that 

action. Middleborough, supra.

As the commission argues, its interpretation is consistent 

with the language used by the Legislature in the statutory 

provisions at issue: an individual who holds a tenured, 

permanent civil service position and is then provisionally 

promoted is still "a civil service employee who is employed 

following (1) an original appointment to a position on a 

permanent basis." G. L. c. 31, § 1. See Andrews v. Civil Serv. 

Comm'n, 446 Mass. 611, 613 (2006) ("A tenured employee in the 

civil service system is one who initially occupied a position by 

original appointment . . . and has completed the probationary 

period, or one who has received a 'promotional appointment' on a 

permanent basis . . ."). Moreover, and importantly, the 

commission's construction of §§ 1 and 41 to permit a discharged 

provisional employee who previously held tenured employee status 

to appeal his discharge to the commission is reasonably related 

to and furthers the purpose of the civil service law, which is

"to free public servants from political pressure and arbitrary 

separation from the public service" while providing for removal 
13

of those that are incompetent or unworthy. See Cullen v. Mayor 

of Newton, 308 Mass. 578, 581 (1941).12

Because the commission's reading of the relevant statutory 

provisions is "reasonable, consistent with the statutory 

language and purposes, and appropriate," Zoning Bd. of Appeals 

of Amesbury v. Housing Appeals Comm., 457 Mass. 748, 762 (2010), 

we accept it. Accordingly, McDowell, as a provisionally 

promoted civil service employee who previously held tenure in 

his original, appointed position of carpenter, was a "tenured 

employee" who retained the right to appeal from the termination 

of his employment with the city to the commission.13

 

12 The commission stated that due to a lack of civil service 

examination administration, there was an over-use of provisional 

appointments and promotions, and that in these circumstances, 

providing the protections of §§ 41 and 43 to a provisionally 

promoted employee who initially held a tenured civil service 

position on a permanent basis would best promote the legislative 

intent of the civil service laws. We note that McDowell held 

his provisional appointment as deputy director for over ten

years.

13 The city suggests that this interpretation of §§ 1 and 41 

of the civil service statute will require appointing authorities 

always to permit provisionally promoted employees who are 

terminated from employment "through their own fault" to return 

to and remain in their original, tenured civil service 

positions. The city is not correct. Although such a civil 

service employee has the right to appeal his or her termination 

to the commission, if the commission finds just cause for the 

appointing authority's decision to terminate, the commission

must affirm that decision. See G. L. c. 31, § 43. In such a 

case, the employee must leave his or her municipal employment 

altogether and has no right to return to the original, tenured 

position. A return to the original position may only occur if, 

pursuant to its authority under § 43, the commission reverses 
14

We turn to McDowell's appeal.

b. Suspension for "misconduct in office".

14 The commission 

determined that the city, pursuant to G. L. c. 268A, § 25

(§ 25), would have suspended McDowell without pay effective 

April 13, 2007, on account of his indictment for filing false 

tax returns. The city agrees with the commission's decision in 

this respect, but McDowell argues that the commission committed 

 

the appointing authority's penalty of termination or, as in this 

case, modifies it.

14 As previously indicated, the first issue McDowell raises 

in his appeal is that it was error for the commission to have 

considered his 2007 indictment and conviction at all in this 

case, because they took place two years after the city 

terminated him, and as such, they cannot qualify as "afteracquired evidence" as the city suggested to the commission. The 

after-acquired evidence principle permits an employer to show 

that later-discovered but legitimate reasons for taking adverse 

employment action against an employee, if they had been known at 

the time, would have justified or mitigated the employer's 

otherwise impermissibly discriminatory action (e.g., discharge) 

relating to that employee, and can serve to limit the employee's 

recovery. See, e.g., Flesner v. Technical Communications Corp., 

410 Mass. 805, 815-816 (1991). We agree with McDowell that his 

criminal indictment and conviction are not "after-acquired 

evidence" because they did not occur before the city terminated 

McDowell in 2005. Nevertheless, the fact that the criminal 

charges do not so qualify is of no import in this case because, 

as the judge concluded, at issue here are two separate 

terminations by the city: (1) the April 15, 2005, termination 

for misuse of city property; and (2) the November 27, 2007, 

termination based on McDowell's criminal conviction. The city 

asked the commission to consider McDowell's indictment for and 

conviction of filing false tax returns as a basis for the second 

termination only, and accordingly, the after-acquired evidence 

principle does not come into play. We consider the issue of two 

terminations, infra.
15

error of law in ruling that § 25 authorized the city to suspend 

him upon his indictment. We agree with McDowell.

A public employer may suspend an employee without pay

pursuant to § 25 during any period the employee is under 

indictment for "misconduct in such office or employment."15 The 

applicability of § 25 in each case is "controlled by the duties 

and obligations accompanying the particular employment," 

Perryman v. School Comm. of Boston, 17 Mass. App. Ct. 346, 349 

(1983), and there must be a direct relationship between the 

employee's misconduct and the office held. Id. at 348. In 

general, a criminal indictment arising out of an employee's offduty activities is not considered to be one implicating 

misconduct in office. Dupree v. School Comm. of Boston, 15 

Mass. App. Ct. 535, 537 (1983). "There are, however, 

circumstances where the crime charged, no matter where or when 

performed, is so inimical to the duties inherent in the 

employment that an indictment for that crime is for misconduct 

 

15 General Law c. 268A, § 25 (§ 25), provides in pertinent 

part:

"An officer or employee of a county, city, town or 

district . . . may, during any period such officer or 

employee is under indictment for misconduct in such office 

or employment . . . be suspended by the appointing 

authority . . . .

"Any person so suspended shall not receive any 

compensation or salary during the period of suspension 

. . . ."
16

in office." Id. In addition, "[t]here are certain forms of 

employment which carry a position of trust so peculiar to the 

office and so beyond that imposed by all public service that 

conduct consistent with this special trust is an obligation of 

the employment." Perryman, supra at 349. Police officers fall 

into such a category; in order to perform their jobs, they 

"voluntarily undertake to adhere to a higher standard of conduct 

than that imposed on ordinary citizens," must "comport 

themselves in accordance with the laws that they are sworn to 

enforce and behave in a manner that brings honor and respect for 

rather than public distrust of law enforcement personnel." 

Attorney Gen. v. McHatton, 428 Mass. 790, 793-794 (1999), 

quoting Police Comm'r of Boston v. Civil Service Comm'n, 22 

Mass. App. Ct. 364, 371 (1986). See Dupree, supra at 538, and 

cases cited. School teachers do as well, because they have an 

"extensive and peculiar opportunity to impress [their] attitude 

and views" on their students. Dupree, supra, quoting Faxon v. 

School Comm. of Boston, 331 Mass. 531, 534 (1954).

The commission argues that McDowell's indictment for filing 

false tax returns constitutes misconduct in office because the 

income from his privately owned business that he failed to 

report was, in part, earned while he was working for the city 
17

and using public resources.16 The commission asserts that 

because its determination that McDowell's charged tax fraud 

constituted misconduct in office was reasonable and supported by 

substantial evidence, that determination is entitled to 

deference.

As earlier discussed in another context, deference is due 

when an agency interprets a statute it is charged with 

administering. Commerce Ins. Co. v. Commissioner of Ins., 447 

Mass. 478, 481 (2006). The commission, however, is not 

specifically charged with administering § 25, which is a statute 

that applies generally to all officers, employees, and 

appointing authorities of county and local government. 

Accordingly, the commission's interpretation of this statute, 

while relevant, is not one to which we pay special deference. 

Furthermore, ultimately, "the duty of statutory interpretation 

rests in the courts." Commerce Ins. Co., supra. There is 

little or no evidence in the record before us linking the false 

tax returns at issue in McDowell's indictment -- which covered 

five separate years -- to the private business work the 

 

16 The commission's decision on the city's motion for 

reconsideration summarizes the commission's conclusions that 

McDowell engaged in the following conduct: (1) used his cityowned cellular telephone on eleven occasions for a total of 

fourteen minutes during regular work hours for his private 

business; (2) used a city-owned facsimile machine at least twice 

for private business; (3) asked a city employee for advice about 

his private business during work hours; and (4) compiled or 

reviewed private business proposals during work hours.
18

commission found McDowell undertook during the hours of his 

employment. As a consequence, the record did not provide a 

basis for the commission reasonably to have concluded that 

McDowell's indicted conduct represented misconduct in office 

within the meaning of § 25, rather than conduct qualifying as 

off-duty.

The city takes a different tack, arguing that the position 

of deputy director, like that of a police officer or teacher, 

holds a higher expectation of trust than other public service 

jobs, and therefore McDowell's off-duty conduct cannot be 

separated from his on-duty conduct. McDowell counters that at 

the time of his indictment in April of 2007, he would no longer

have been a deputy director. Rather, pursuant to the terms of 

the commission's original decision in this case, he would have 

returned to his original, tenured civil service position of 

carpenter following the suspension ordered by the commission. 

He argues that a carpenter is an ordinary employee "not subject 

to any special trust inherent in that position." Accordingly, 

his filing of false tax returns, a crime arising from off-duty 

conduct (at least based on the record here), was not "misconduct 

in office" within the meaning of § 25, and therefore the city 

could not have properly suspended him pursuant to that statute.

Had the commission issued in a more timely manner its 

decision to modify McDowell's termination to a nineteen-month 
19

suspension, it is reasonable to assume, as McDowell does, that 

at the time he was indicted in April, 2007, he already would 

have completed his suspension and been employed as a carpenter 

for the city.17 In these circumstances, the city's contention 

that McDowell's role as deputy director was one of public trust

becomes essentially irrelevant. The appropriate focus must be 

on the relationship between the crime charged in the indictment 

and McDowell's "duties and obligations" as a carpenter. 

Perryman, 17 Mass. App. Ct. at 349.

The record is silent on the specific duties of a skilled 

carpenter in the employ of the city, but certainly the position 

is not on a par with that of a police officer or school teacher 

in terms of public trust. There is no suggestion that a

carpenter, even one who is a public employee, is sworn to uphold 

the law as an integral part of his job, nor any contention that 

a carpenter has any particular opportunity to act as a role 

model for or impress his attitudes on young students. Rather, 

 

17 While the record does not specify the cause of the delay, 

the commission does acknowledge that "this appeal was longer 

than usual" and "it is regrettable that a decision was not 

issued in a more timely manner." McDowell's nineteen-month 

suspension would have run from April 15, 2005, to November 15, 

2006, at which point presumably he would have returned to his 

position as a carpenter for the city and would have been serving 

in that position in April, 2007, when he was indicted for filing 

false returns. (Even with the commission's later modification 

of the nineteen-month suspension to a six-month suspension, the 

result would have been the same: McDowell would have been 

employed as a carpenter when he was indicted.)
20

this appears to be a case to which the rule that "[a]n 

indictment for a crime arising from an employee's off-duty 

conduct is not generally considered misconduct in office under 

G. L. c. 268A, § 25," squarely applies. Dupree, 15 Mass. App. 

Ct. at 537. The city would not have been entitled to suspend 

McDowell without pay from his employment as a skilled carpenter 

as of April 13, 2007, pursuant to § 25, and the commission's 

contrary ruling was error.

c. Waiver of right to second termination hearing.

18

Finally, McDowell argues that even if the commission permissibly 

could consider his conviction as a separate ground for his 

termination, McDowell was deprived of his due process rights 

because the city did not comply with the necessary procedural 

requirements pursuant to § 41 when, through its motion for 

 

18 We have discussed in the previous section McDowell's 

challenge to the substantive legal authority of the city to 

suspend him based on the indictment for filing false tax returns 

that was issued on April 13, 2007. McDowell does not challenge 

on appeal the substantive legal authority of the city to 

terminate his employment based on his conviction of this crime, 

which occurred on November 27, 2007. Rather, his challenge to 

his termination from employment based on the conviction, which 

we discuss in this section, is a procedural one. As to 

substantive authority, the city has stated that it was permitted 

to terminate McDowell upon his conviction pursuant to G. L. 

c. 31, § 50, which provides in pertinent part, "No person . . . 

shall . . . be appointed to or employed in any . . . [civil 

service] position within one year after his conviction of any 

crime except that the appointing authority may, in its 

discretion, appoint or employ within such one-year period a 

person convicted of [certain specified crimes not applicable in 

this case] . . . ."
21

reconsideration, it sought respectively to suspend and then 

terminate McDowell based on his indictment and subsequent

conviction.

19 Section 41 requires, in part, that prior to 

suspending for more than five days or terminating a tenured 

employee, the appointing authority provide the employee with 

proper written notice. McDowell contends that he never received 

such notice as to the city's intent to suspend and subsequently 

terminate his employment based on the indictment and conviction,

and thus, he was not able to avail himself of his statutory due 

process rights to a hearing. Accordingly, the commission's 

decision approving of his termination on this ground should be 

rendered void and he should be reinstated as a carpenter and 

awarded back pay and benefits to October 15, 2005. We conclude 

that because McDowell failed to raise this issue properly before 

the commission, or the Superior Court, he has waived any claim 

to defective notice and therefore the commission's decision that 

he would have been terminated effective November 27, 2007, did 

not violate the procedural rights and protections that § 41 

afforded him.

Failure to raise an issue before an appointing authority, 

an administrative agency, and a reviewing court precludes a 

party from raising it on appeal. See Albert v. Municipal Court 

 

19 This is the second termination decision referred to 

previously. See note 14, supra.
22

of Boston, 388 Mass. 491, 493-494 (1983). While there may be 

exceptional circumstances requiring appellate review of an issue 

not raised before the agency or the court below so as to avoid 

injustice, the presumption of waiver "has particular force where 

the other party may be prejudiced by the failure to raise the 

point below." Id. at 494, quoting Royal Indem. Co. v. Blakely, 

372 Mass. 86, 88 (1977). McDowell did not raise the claim of 

defective notice before the commission, did not appeal the 

commission's decision to the Superior Court, and did not raise 

the issue before the judge in that court when responding to the 

city's appeal -- despite his knowledge that the city did in fact 

seek to suspend and terminate him as a result of his criminal

conduct. Accordingly, the issue is waived.20

 

20 The city and the commission argue that McDowell did 

receive written notice in the form of the city's motion for 

reconsideration. In the motion, the city stated that "upon 

indictment Mr. McDowell would have been suspended under [G. L. 

c. 268A] and upon conviction terminated." This language placed

McDowell on notice that, even if the commission's decision 

modifying his April 15, 2005, termination to a suspension was 

upheld, McDowell's employment with the city would have ceased 

upon his indictment and conviction in 2007. It is reasonable to 

assume that McDowell understood the city's intent to terminate 

him, as evidenced by his opposition to the city's motion for 

reconsideration that discussed at length why his criminal 

activity should not be considered. After receiving what 

McDowell alleges was defective notice, he could have filed a 

complaint, pursuant to G. L. c. 31, § 42, within ten days in 

order to provide the city the opportunity to correct it, but he 

did not. McDowell also could have exercised his right to a

hearing as provided in the commission's decision, but he 

declined. Once the commission issued its decision on the city's 
23

3. Conclusion. The judgment of the Superior Court 

affirming the decision of the commission is affirmed in part and 

reversed in part. For reasons explained in this opinion, the 

city did not have the authority to suspend McDowell without pay 

upon his indictment for filing false tax returns, and therefore 

the decision of the commission ruling that McDowell would have 

been suspended as of April 13, 2007, must be reversed in that 

respect. McDowell does not challenge the city's substantive 

legal authority to terminate him upon his conviction of the 

charged crime on November 27, 2007, and the commission's 

decision affirming McDowell's termination as of that date should 

be affirmed. McDowell was not properly suspended during the 

period from October 15, 2005, the date on which the six-month 

suspension ordered by the commission would have been completed, 

to November 27, 2007, the date of McDowell's conviction. The 

case is remanded to the Superior Court for entry of an order

remanding the case to the commission for further proceedings 

consistent with this opinion.

So ordered.

 

motion for reconsideration, McDowell could have filed an appeal 

with the commission contesting the termination, but he did not.