NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

21-P-1096

GREGORY LEWANDOWSKI 

vs.

CIVIL SERVICE COMMISSION & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a Superior Court judgment 

affirming the decision of the Civil Service Commission 

(commission) which, in turn, affirmed the town of Charlton's 

(town or Charlton) termination of the plaintiff's employment in 

the Charlton Police Department (CPD). The plaintiff primarily 

argues that he was deprived of due process because the stated 

reasons for his termination were pretextual, and because his 

firing was instead motivated by personal animus or bias against 

him. He also contends that the commissioner who presided over 

the hearing should have reviewed, in camera, evidence over which 

the town claimed the attorney-client privilege. We affirm.

1 Town of Charlton.
2

Background. Prior to his termination, the plaintiff served 

on the CPD during two relevant periods. He first served as a 

part-time auxiliary police officer from July 2002 to December 

2003. After a brief stint at another police department, the 

plaintiff rejoined CPD as a full-time officer in September 2005. 

The plaintiff was promoted to lieutenant in July 2013, and

served in that role until his termination in October of 2018.

The plaintiff's termination followed a months-long 

investigation, the impetus of which was the plaintiff's receipt 

of a so-called "longevity payment" in November 2017. As 

relevant here, the town once paid "longevity payments" to 

eligible CPD employees under a collective bargaining agreement 

(and a later memorandum of understanding) (collectively, CBA) 

between the town and the Charlton Police Alliance. As of July 

2016, the CBA provided for once-yearly payments of $200 to fulltime employees who had reached ten years of service. The yearly 

payments increased if the employee reached additional longevity 

milestones -- e.g., to $400 after fifteen years of service, and 

to $1,000 after twenty. Under this structure, the plaintiff 

received his first $200 longevity payment in July 2016, and his 

second in July 2017.2

2 Although the CBA did not entitle lieutenants to longevity 

payments, the plaintiff received such payments based on CPD

practice.
3

In October 2017, the town added a new bylaw providing for 

yearly longevity payments to "any eligible employee," defined as 

"[o]ne who is currently employed by the [t]own and who is 

regularly scheduled to work a minimum of twenty . . . hours per 

week."3 As a result, in November 2017 the town's assistant human 

resources director circulated a "longevity chart" to a group of 

town employees (including the plaintiff), listing each eligible 

employee's start date, length of service, and the payment they 

were due that year. The chart listed the plaintiff's start date 

as July 2002 (when he started as a part-time auxiliary officer)

and showed that he was due a $200 payment based on fourteen 

years of service. The plaintiff thereafter received a $200 

longevity payment in November 2017, his second of that year. 

In December 2017, CPD Chief Graham Maxfield discovered that 

the plaintiff had received two longevity payments in 2017, and 

asked the plaintiff for an explanation. The plaintiff claimed 

that he received the second payment because he had reached an 

anniversary with the town. In a subsequent written response

(which Chief Maxfield had directed the plaintiff to provide), 

the plaintiff explained that he had received his first ten-year 

longevity payment in July 2016, that "the town had [him] 

3 Under the 2017 bylaw, the ten-year and fifteen-year payments

remained $200 and $400, respectively. Unlike the CBA, 

lieutenants were covered by the bylaw. See note 2, supra.
4

reaching [his] fifteen . . . year" anniversary in July 2017, and 

that he believed the November 2017 payment "was an adjustment" 

for hitting that milestone. This confused Maxfield, who did not 

understand how the plaintiff was eligible for a fifteen-year 

payment in July 2017, when he had received his first ten-year 

payment the prior year. After further inquiry, Maxfield learned 

that the plaintiff had not begun his full-time service with CPD

until 2005, prompting him to ask the plaintiff how he had 

learned that he had reached his fifteen-year anniversary. The 

plaintiff pointed to the longevity chart, which showed fourteen

(not fifteen) years of service.

Also in December 2017, the plaintiff sought and obtained 

forty additional hours of vacation time based on the 2002 start 

date shown in the longevity chart -- in the process representing 

to Maxfield (in response to Maxfield's question) that he had 

been at the CPD for fifteen years. Around that same time, the 

plaintiff contested the results of an audit of his available 

sick leave time, contending that his own audit showed that he 

had 1,186 hours available, not 904 hours as the town contended. 

Although Maxfield initially accepted the plaintiff's number, the 

town subsequently discovered that the plaintiff's audit had not 

accounted for sick days that the plaintiff had taken between 

2005 and the beginning of July 2008. Sick leave taken before 

July of 2008 was not recorded in the town's computer system, but 
5

only in physical books -- a fact of which the plaintiff was 

aware due to his oversight of prior CPD sick leave audits. 

Eventually, in reviewing the circumstances that led to the 

plaintiff's November 2017 longevity payment, Maxfield learned 

that the plaintiff's start date in the longevity chart 

corresponded with his part-time auxiliary service, and not when 

he began as a full-time officer. Maxfield accordingly directed 

the plaintiff to remedy the extra longevity payment and 

increased vacation time with the human resources department. 

While the plaintiff asked the human resources department to 

deduct forty hours of vacation time, he did not raise the 

longevity payment. Maxfield subsequently learned that the 

plaintiff's service to the town had not been continuous -- that 

is, there was a gap between his service as a part-time auxiliary 

officer and when he was rehired full-time. Believing that the 

plaintiff had deliberately misled him, Maxfield resolved to

investigate the matter further, and placed the plaintiff on 

administrative leave in April 2018.

In September 2018, after Maxfield had completed his 

investigation, there was a disciplinary hearing before a hearing 

officer appointed by the town. Based on the hearing officer's 

recommendations, the town's board of selectmen voted to 

terminate the plaintiff for just cause, citing, among other 

things, his improper receipt of two longevity payments in 2017; 
6

his knowing use of an incorrect hire date to secure additional 

vacation time; his intentional inflation of accrued sick leave; 

and his lack of candor during the investigation.

The plaintiff appealed the town's decision to the 

commission pursuant to G. L. c. 31, § 43, and a hearing was held 

before a commissioner. The plaintiff argued that his 

termination was the product of disparate treatment, pointing to 

other town employees, including Maxfield, who had received 

inflated longevity payments but who were not fired. The 

plaintiff also argued that the investigation and his ultimate 

termination were motivated by personal animus and bias, and that 

the investigation was intended to manufacture a pretext to 

accomplish his termination.4 The plaintiff claimed that Maxfield 

had a personal animus toward him because, over a decade earlier, 

the plaintiff had reported to a prior CPD chief that Maxfield, 

then a sergeant, was encouraging auxiliary officers to refuse 

paid details to show solidarity with the police union.

The commission affirmed the town's decision as supported by 

just cause under G. L. c. 31, § 43. The commission found that 

4 The plaintiff argued that an e-mail between Maxfield and town 

counsel -- which the town withheld as privileged -- would have 

evidenced the pretextual nature of the investigation. Maxfield 

sent the e-mail on the day that he placed the plaintiff on 

leave, referencing in a separate e-mail to the town 

administrator and human resources director that he had 

"forwarded" to town counsel a copy of the letter placing the 

plaintiff on leave.
7

the evidence failed to show that the plaintiff's termination was 

pretextual, or motivated by animus or bias. The commission also 

concluded that, although the plaintiff's acceptance of the 

second 2017 longevity payment did not alone support his 

termination, the plaintiff's additional conduct -- including his 

efforts to obtain extra vacation time, his attempts to secure 

inflated sick leave, and his lack of candor -- justified the 

town's decision. A judge of the Superior Court affirmed the 

commission's decision, and this appeal followed.

Discussion. On appeal, the plaintiff primarily contends 

that he was unconstitutionally deprived of his employment

without due process of law. The plaintiff does not challenge 

the commission's findings directly, but rather urges that the 

town's investigation, and decision to fire him, was borne of 

personal animus and thus, allegedly, deprived him of a 

meaningful opportunity to be heard. The plaintiff also argues 

that the hearing commissioner erred by not reviewing in camera 

an e-mail between Maxfield and town counsel concerning the 

plaintiff's administrative leave, as to which the town claimed 

attorney-client privilege. We review the commission's decision 

under G. L. c. 31, § 44. Accordingly, the decision "will be 

upheld unless it is 'unsupported by substantial 

evidence[,] . . . arbitrary or capricious, an abuse of 

discretion, or otherwise not in accordance with the law.'" 
8

Boston Police Dep't v. Civil Serv. Comm'n, 483 Mass. 461, 469 

(2019), quoting G. L. c. 30A, § 14 (7). "This standard of 

review is highly deferential to the agency on questions of fact 

and reasonable inferences drawn therefrom" (citation omitted). 

Brackett v. Civil Serv. Comm'n, 447 Mass. 233, 242 (2006).

As to the plaintiff's due process argument, we agree that

"[t]enured civil servants," such as the plaintiff, "have a 

property interest in their employment, and must be afforded 

basic due process protections in . . . disciplinary proceedings" 

(citation omitted). Worcester v. Civil Serv. Comm'n, 87 Mass.

App. Ct. 120, 124 (2015). Those "[c]onstitutional safeguards

require" that a person in the plaintiff's position receive (1)

notice of the charges against him, (2) (generally), a

pretermination hearing, (3) "an explanation of the [town]'s

evidence," and (4) "an opportunity . . . to present [his] side

of the story." Id. at 124-125. He is also entitled to an

impartial hearing. See Harris v. Board of Trustees of State

Colleges, 405 Mass. 515, 521 (1989). Here, the plaintiff has no

argument as to the fairness of the adjudicatory process itself;

the plaintiff does not (and cannot) complain that he was

deprived of notice, of a pretermination hearing, or of an

explanation of the town's evidence -- nor does the plaintiff

challenge the impartiality of the hearing or the commissioner. 

Instead, the thrust of the plaintiff's argument appears to be
9

that the process was necessarily "tainted" by a "purely

pretextual" investigation that was motivated by animus and bias. 

We do not agree that due process was not afforded here.

To begin, the plaintiff's due process theory is based on

the questionable premise that a biased investigation necessarily

amounts to a due process violation. The plaintiff cites no case

for this proposition, and there is some case law to the

contrary. See Gonzalez-Droz v. Gonzalez-Colon, 660 F.3d 1, 15

(1st Cir. 2011) ("investigat[or] . . ., unlike a decisionmaker,

does not have to be neutral").5 But in any event, here the

plaintiff was able to argue before the commission that the

investigation and his termination were motivated by bias and

animus, and that the stated reasons for his termination were

pretextual. He thus had ample opportunity to "present [his]

side of the story" (citation omitted). See Worcester, 87 Mass.

App. Ct. at 125. The commission rejected those arguments on the

facts, concluding that the evidence failed to show that the

termination was "based on any . . . bias" or that the

investigation was "a pretext to bring about the [plaintiff's]

termination." The commission found, to the contrary, that the

termination was based upon the plaintiff's multiple instances of

5 Although an investigator's bias might give rise to rights under 

State law, see Cambridge v. Civil Serv. Comm'n, 43 Mass. App. 

Ct. 300, 304 (1997), the plaintiff does not press such an 

argument on appeal.
10

untruthfulness. We give deference to such factual findings,

Brackett, 447 Mass. at 242, which the plaintiff does not

challenge as unsupported by the evidence. See Matter of

Eisenhauer, 426 Mass. 448, 453-454 (1998) (no due process

violation absent evidence of biased decisionmakers).

This result is unaffected by the plaintiff's contention

that he was subject to "inequitable treatment among similarly 

situated individuals" -- that is, other employees also received 

improper longevity payments but were not fired. Here again, the 

plaintiff made this argument to the commission, which found that 

the plaintiff was "distinguish[able]," because "the record d[id] 

not show that those other employees engaged in multiple 

instances of untruthfulness," whereas the plaintiff took several 

actions that "called into question his honesty" and that 

"appeared designed to obfuscate." Given those findings, there 

is no "basis to believe that the discharge penalty unfairly 

singled out [the plaintiff] for punishment more harsh or unusual 

than otherwise imposed in like circumstances." Police Comm'r of 

Boston v. Civil Serv. Comm'n, 39 Mass. App. Ct. 594, 601 (1995). 

See Moore v. Executive Office of the Trial Court, 487 Mass. 839, 

850 (2021).

In a related argument, the plaintiff contends that the 

hearing commissioner erred by not reviewing, in camera, an email that Maxfield sent to town counsel. The plaintiff argues
11

that the e-mail either was not privileged, or was subject to a

privilege exception, and that the e-mail would have supported 

his pretext argument. The town argues, and a judge of the 

Superior Court concluded, that the commissioner did not err by

not reviewing the document. We agree.

The plaintiff requested the e-mail during prehearing 

discovery, apparently learning of its existence through review

of a separate communication. The town did not produce the email, and the commissioner denied the plaintiff's motion to 

compel its production. The plaintiff nonetheless renewed his

request during the hearing. Outside counsel for the town

represented that he had reviewed the e-mail, and expressed his 

belief that it was privileged.6 Plaintiff's counsel asked the 

commissioner to review the document in camera, but the town 

objected. Plaintiff's counsel then responded: "If you don't 

want to supply the document, then we're entitled to an adverse 

inference." The commissioner then stated, before taking the 

matter under advisement:

"Why don't you think about it and whether or not you want 

to have an in camera review. Take that in consideration of 

whether you want to do an in camera review or not. I don't 

know whether it's a big deal or not. But think about it, 

and then let me know, and I'll make a decision on it 

later."

6 Outside counsel was not the "town counsel" to whom Maxfield

sent the e-mail in question.
12

The issue was not raised again at the hearing. In the 

plaintiff's posthearing submission (a draft "proposed 

decision"), the plaintiff noted his request to review the email, but ultimately proposed that the commission "draw [an]

adverse inference . . . that the evidence if produced would be 

prejudicial to the [t]own."

Under the circumstances, the plaintiff waived the argument 

he now pursues. See Carey v. New England Organ Bank, 446 Mass. 

270, 285 (2006) (issues not argued below waived on appeal). 

Although the plaintiff initially requested an in camera review, 

after discussion the commissioner left to the plaintiff whether 

he wanted to pursue the argument. The plaintiff did not follow 

up. Although it is true that the plaintiff's posthearing 

submission noted the request for in camera review, the plaintiff 

did not propose any resolution other than asking for an adverse 

inference. Where this was the plaintiff's only follow up to the 
13

commissioner's clear direction, the commissioner cannot be 

faulted for not reviewing the e-mail.7

Judgment affirmed.

By the Court (Rubin, 

Englander & Brennan, JJ.8),

Clerk

Entered: June 1, 2023.

7 We also note that the plaintiff has marshalled no evidence 

supporting his theory that the e-mail evidenced pretext. Under 

the circumstances, asking for an adverse inference may well have 

been a strategic choice. The plaintiff and his counsel may have 

thought the better course was to ask for an adverse inference, 

rather than risk the possibility that in camera review would 

result in nothing -- or actually harm the plaintiff's case.

8 The panelists are listed in order of seniority.