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SJC-12326

   LUIS S. SPENCER    vs.   CIVIL SERVICE COMMISSION & another.1



         Suffolk.     December 4, 2017. - March 27, 2018.

   Present:   Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.


Commissioner of Correction. Public Employment, Resignation.
     Civil Service, Decision of Civil Service Commission,
     Termination of employment, Findings by commission.
     Jurisdiction, Civil Service Commission. Words,
     "Termination of his service."



     Civil action commenced in the Superior Court Department on
December 8, 2015.

     The case was heard by Robert N. Tochka, J., on motions for
judgment on the pleadings.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     David A. Russcol (Monica R. Shah also present) for the
plaintiff.
     Jesse M. Boodoo, Assistant Attorney General, for the
defendants.




    1   Department of Correction.
                                                                    2


    KAFKER, J.    The issue presented is whether Luis S. Spencer,

who resigned under pressure as Commissioner of Correction

(commissioner) in the midst of a public investigation of his

oversight of Bridgewater State Hospital, has a right, pursuant

to G. L. c. 30, § 46D, to revert to a tenured civil service

correction officer II position he last held in 1992.     Upon his

resignation and the denial of his request to revert, Spencer

filed an appeal with the Civil Service Commission (commission).

The commission concluded that the right to revert to a civil

service position applies only to involuntary terminations, not

voluntary resignations, and because Spencer voluntarily

resigned, no "termination of his service" had occurred within

the meaning of G. L. c. 30, § 46D.   Spencer brought a complaint

against the commission and the Department of Correction

(department), seeking judicial review of the commission's

decision.   A judge in the Superior Court affirmed the

commission's decision.   Spencer appealed, and we transferred his

appeal to this court on our own motion.   We conclude that § 46D

does not provide a right to revert in these circumstances and

that the commission's interpretation of this ambiguous statutory

language is reasonable, as it applies the same rules for

reversion to managers as it does to all other civil service

employees and avoids the type of manipulation of retirement
                                                                      3


benefits at issue here.     Accordingly, we affirm the decision of

the commission.

    1.   Background.   a.   Statutory framework.   Under the

Commonwealth's civil service statutory scheme, a number of rank

and file and lower level management positions, particularly in

public safety, are covered by the civil service laws.      A tenured

civil service employee cannot be demoted, discharged, or

suspended from such positions without just cause.      See G. L.

c. 31, §§ 1, 41.   Rather, the appointing authority must follow

specific procedures to terminate a tenured civil service

employee, and the employee is entitled to a full hearing before

such termination takes effect.    G. L. c. 31, § 41.    Where a

tenured civil service employee is terminated for "lack of work

or lack of money or abolition of positions," the employee may

opt to be demoted to his or her next lowest title, instead of

being terminated, "if in such next lower title or titles there

is an employee junior to him in length of service."      See G. L.

c. 31, § 39.   This practice is known as "bumping."     See Andrews

v. Civil Serv. Comm'n, 446 Mass. 611, 619 (2006).      By contrast,

if an employee resigns, there is no provision granting him or

her the right to request his or her prior position.      See G. L.

c. 31, § 39.

    The civil service laws do not apply to middle and upper

level management positions in public service.      See G. L. c. 30,
                                                                   4


§§ 46D, 46E, 46F.    However, under G. L. c. 30, § 46D, a middle

or upper level manager may revert or "bump" back to the tenured

civil service position from which he or she has been promoted

upon "termination of his [or her] service."2    For middle and

upper level managers who were "terminated for cause," the right

to revert is more limited and must be determined by a hearing




     2   General Laws c. 30, § 46D, provides:

          "Whenever it is deemed practicable in the judgment of
     the appointing authority and with concurrence with the
     secretary, where applicable, appointments to positions
     allocated to job groups M–I through M–IV, inclusive, of the
     management salary schedule shall be made by promoting
     employees of the [C]ommonwealth serving in positions
     assigned to the general salary schedule; and appointments
     to positions allocated to job groups M–V through M–XII,
     inclusive, in the management salary schedule shall be made
     by promoting managers of the [C]ommonwealth serving in
     positions allocated to job groups M–I through M–IV,
     inclusive, in the management salary schedule.

          "In every instance of a manager or employee so
     promoted from a position classified under [G. L. c. 31] or
     from a position in which at the time of promotion he shall
     have tenure by reason of [G. L. c. 30, § 9A], upon
     termination of his service in the position to which he was
     so promoted, the manager or employee shall, if he so
     requests, be restored to the position from which he shall
     have been promoted, or to a position in the same [S]tate
     agency, without impairment of his civil service status or
     his tenure by reason of said [§ 9A] or loss of the
     seniority, retirement and other rights to which
     uninterrupted service in such position would have entitled
     him; provided, however, that if his service in the position
     to which he was promoted shall have been terminated for
     cause, his right to be restored shall be determined by the
     civil service commission, in accordance with the standards
     applied by said commissioner in administering [G. L.
     c. 31]."
                                                                     5


before the commission, in accordance with the standards set out

in G. L. c. 31.    See G. L. c. 30, § 46D.

     b.   Facts.   We summarize the facts as recited in the

commission's statement of undisputed facts.    Spencer was first

appointed to a civil service position in 1980 when he became a

Correction Officer I (CO-I).    In 1991, he was appointed captain,

the first in a string of appointments to nontenured management

positions.   In 1992, he received a one-day permanent appointment

to Correction Officer II (CO-II), the highest tenured civil

service position he would ever hold.    He was granted a permanent

leave of absence from this position3 and continued up the ranks

of nontenured management positions, being appointed director of

security in 1993, deputy administrator in 1995, superintendent

in 1997, and assistant deputy commissioner in 2008.

     In 2011, Spencer was appointed as commissioner by the

Secretary of the Executive Office of Public Safety & Security

(Secretary).   His appointment was approved by the Governor.    In

2014, Spencer came under intense public scrutiny for his

handling of the investigation into an inmate's death at

Bridgewater State Hospital.    In March, 2014, Spencer received a

written letter of reprimand from the Secretary for his failure


     3 Although Spencer's appointment to Correction Officer II
(CO-II) was only for one day, his request for a permanent leave
of absence from that position was not officially granted until
2003, over eleven years after he left the position.
                                                                   6


to track the results of the investigation vigilantly.    The

letter ordered Spencer to "revisit the investigation and place

the officers involved on administrative leave, pending renewed

inquiry into the matter."

    In July, 2014, details emerged of another incident at

Bridgewater State Hospital that took place in May, 2014, this

time involving the alleged abuse of a mental health patient by a

correction officer.   On July 22, 2014, the Secretary spoke with

Spencer by telephone, and informed him that the Governor had

requested Spencer's resignation.    The Secretary requested that

Spencer send her two letters of resignation, one dated July 23,

2014, and one dated July 28, 2014, in the event that it took a

few days for the department to transition to a new commissioner.

    On July 23, Spencer contacted the acting assistant deputy

commissioner for human resources.   Spencer asked her to confirm

department practice on reverting to a prior civil service

position, and to send the sample language for requesting to

revert.   After receiving the sample language, Spencer sent the

Secretary two copies of his resignation letter, one dated July

23, 2014, and the other dated July 28, 2014.   The resignation

letter highlighted Spencer's accomplishments as commissioner,

and concluded with the following statement:    "I ask that you

respectfully accept my resignation from my appointed position as

the [commissioner] and accept my request to revert back to my
                                                                    7


last uniformed position, which was [c]aptain for the

[department]."4   Later the same day, Spencer also sent the

Secretary an additional letter specifically requesting to revert

to his captain position and a second, amended reversion letter,

with additional salary information.   Spencer stated in his

reversion letter that "[i]f this request is approved . . . I

would then be able to retire within a year at [eighty per cent].

If I retire from the [department] on this date I would only be

eligible for 50.4 [per cent]."    Spencer also sent the Secretary

a page from the "Benefit Guide for the Massachusetts Employee's

Retirement System," and highlighted the criteria for "certain

correction officers" to be classified in "Group Four" for

retirement purposes.   One such requirement is that the employee

be "actively performing the duties of the [Group Four] position"

for twelve consecutive months immediately preceding retirement.

If Spencer retired as commissioner, he would be classified in

the less lucrative "Group One."

     4 Spencer's prior position as CO-II, not captain, was the
last permanent civil service position he held. If he was
permitted to revert to a position in which he previously had
tenure, he would be reverted to his CO-II position, which he
last held twenty-two years prior, in 1992. The statute does
provide that "the manager or employee shall, if he so requests,
be restored to the position from which he shall have been
promoted, or to a position in the same [S]tate agency." G. L.
c. 30, § 46D. However, the Civil Service Commission
(commission) has limited the entitlement to reversion to apply
only to prior permanent positions, not any other prior position.
O'Donnell v. Registry of Motor Vehicles, 22 Mass. Civ. Serv.
Rep. 638, 642 (2009).
                                                                      8


    The next day, the Secretary spoke with Spencer about his

resignation by telephone.     The Secretary said that the Governor

would accept Spencer's resignation only if it was unconditional,

and that the terms of the resignation would not be negotiated.

Therefore, Spencer could not include the request to revert in

his resignation letter.     According to Spencer, the Secretary

told him that "if [he] did not allow that request to be removed,

[his] employment would be terminated."     The Secretary also

indicated to Spencer that his request to revert from

commissioner to a correction officer was "unprecedented" and

voiced her concerns about his continued presence in the

department.     She did tell him that "she would consider [his]

request to be reinstated."

    After their conversation, the Secretary sent Spencer a

revised copy of Spencer's resignation letter.     The letter was

identical to the resignation letter Spencer had sent the day

before, except that the Secretary had removed the request to

revert.     Spencer acknowledged receipt of the revised resignation

letter.     Internal department paperwork stated that the reason

for Spencer's termination was "Resigned from Mgmt position

7/24/14."

    Four days later, the Secretary verbally informed Spencer

that his request to revert was denied.     On July 30, 2014,

Spencer sent a new request for reversion to the acting assistant
                                                                      9


deputy commissioner.    On August 7, 2014, Spencer was informed

that this request had been denied.    Spencer sent a second

request for reversion to the acting assistant deputy

commissioner that same day.    In a letter dated August 15, 2014,

Spencer was informed his second request had also been denied.

     On August 28, 2014, Spencer filed an appeal with the

commission.   The department filed a motion to dismiss, and the

commission permitted both parties to submit evidence as to the

factual issues.5    After conducting a hearing on the motion, the

commission granted the department's motion and dismissed the

case.    Spencer thereafter sought judicial review of the

commission's decision.

     3.   Discussion.    We may set aside the commission's decision

only if "'the substantial rights of any party may have been

prejudiced' [because the commission decision] is based on an

error of law, unsupported by substantial evidence, or otherwise

not in accordance with the law."     Police Dep't of Boston v.

Kavaleski, 463 Mass. 680, 689 (2012) (Kavaleski), quoting G. L.

c. 30A, § 14 (7).    The party appealing bears a heavy burden

because "we give 'due weight to the experience, technical




     5 Motions to dismiss before the commission differ somewhat
from such motions under Massachusetts Rules of Civil Procedure,
as they may be made after the presentation of evidence. Compare
801 Code Mass. Regs. § 1.01(7)(g) (1998) with Mass. R. Civ. P.
12, 365 Mass. 754 (1974).
                                                                   10


competence, and specialized knowledge of the commission.'"

Kavaleski, supra, quoting G. L. c. 30A, § 14 (7).

    a.   Right to reversion.   The primary issue raised on appeal

is the meaning of "termination of his service" within G. L.

c. 30, § 46D.   Spencer argues that his resignation was a

"termination of his service" under the statute.   He claims that

"termination of his service" applies to voluntary as well as

involuntary separations from employment, and that even if it

applied only to involuntary separations, his resignation was

coerced by the Governor and the Secretary.   The commission

disagreed, finding "termination of his service" does not apply

to voluntary resignations, regardless of the reasons for

resigning.   Spencer contends that the commission's

interpretation of G. L. c. 30, § 46D, is owed no substantial

deference because the commission is responsible only for

administering the civil service laws, not G. L. c. 30.

    i.   Meaning of termination of his service.   "Our primary

duty in interpreting a statute is 'to effectuate the intent of

the Legislature in enacting it.'"   Campatelli v. Chief Justice

of the Trial Court, 468 Mass. 455, 464 (2014), quoting Water

Dep't of Fairhaven v. Department of Envtl. Protection, 455 Mass.

740, 744 (2010).   "Ordinarily, if the language of a statute is

plain and unambiguous it is conclusive as to legislative

intent. . . .   However, time and again we have stated that we
                                                                    11


should not accept the literal meaning of the words of a statute

without regard for that statute's purpose and history"

(citations omitted).     Sterilite Corp. v. Continental Cas. Co.,

397 Mass. 837, 839 (1986).    Moreover, "substantial deference" is

owed "to a reasonable interpretation of a statute by the

administrative agency charged with its administration [and]

enforcement."   Commerce Ins. Co. v. Commissioner of Ins., 447

Mass. 478, 481 (2006).    However, "[a]n incorrect interpretation

of a statute . . . is not entitled to deference."    Kszepka's

Case, 408 Mass. 843, 847 (1990).

     "[T]ermination of his service" is not a well-understood

term of art such as "termination for cause."    While at least ten

other statutes contain very similar wording,6 it appears that we

have not previously been tasked with interpreting the meaning of

"termination of his service" in any of those provisions.     Even

when read in context, the plain meaning of "termination of his

     6 See G. L. c. 6, § 75 (Massachusetts Rehabilitation
Commission); G. L. c. 6A, § 7 (Secretaries of executive
offices); G. L. c. 6C, § 39 (administrative offices of division
of highways); G. L. c. 7, § 4D (Executive Office of
Administration and Finance); G. L. c. 7, § 4J (Human Resources
Division); G. L. c. 10, § 26 (director of the State lottery);
G. L. c. 14, § 4 (Department of Revenue); G. L. c. 19A, § 10
(Department of Elder Affairs); G. L. c. 21A, § 6 (Executive
Office of Energy and Environmental Affairs); G. L. c. 25A, § 4
(Division of Energy Resources). In very different contexts see
also G. L. c. 30, § 32 (annual reports filed by State officers);
G. L. c. 32, § 10 (retirement allowance for civil service
employees); G. L. c. 41, § 127 (tenure for certain appointed
offices in cities, towns and districts); G. L. c. 151D, § 13
(vested benefits).
                                                                   12


service" in G. L. c. 30, § 46D, remains somewhat ambiguous.     The

term is not expressly defined in the statute.   The civil service

statute, G. L. c. 31, which is cross-referenced in § 46D, also

does not employ or define this exact term, although it does

distinguish between involuntary discharges and voluntary

resignations.   See G. L. c. 31, § 1 (defining "discharge" as

"permanent, involuntary separation," and "resignation" as

"permanent voluntary separation").   Although the phrase

"termination of his service" is used only once in § 46D, there

is a subsequent reference to employees "terminated for cause."

As terminations for cause are a subset of involuntary

terminations, the use of the phrase "terminated for cause" in

the same paragraph supports an interpretation that the reference

to "termination of his service" is similarly limited to

involuntary separations from employment.   See Booma v. Bigelow-

Sanford Carpet Co., 330 Mass. 79, 82 (1953) ("It is a familiar

canon of construction, that when similar words are used in

different parts of a statute, the meaning is presumed to be the

same throughout"); Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass.

569, 583 (2012).   For further guidance, however, we turn to the

legislative history and purpose.   See Sterilite Corp., 397 Mass.

at 839.

    Where, as here, the statutory language remains ambiguous,

"we consider 'the cause of its enactment, the mischief or
                                                                    13


imperfection to be remedied and the main object to be

accomplished, [such that] the purpose of its framers maybe

effectuated.'"   Water Dep't of Fairhaven, 455 Mass. at 744

(2010), quoting DiFiore v. American Airlines, Inc., 454 Mass.

486, 490 (2009).   Prior to 1981, middle and upper managers were

eligible to receive civil service status and tenure.    See 1981

House Doc. No. 6279 at 2.   However, in 1981, the Governor

proposed a comprehensive overhaul of the Massachusetts civil

service system to the Legislature, accompanied by a letter and a

document explaining the details of the legislation.     Id. at 1.

The legislation accomplished multiple, related purposes.

Notably, it removed upper and middle level managers from the

civil service system and increased their pay.   See id. at 1-2;

St. 1981, c. 699, § 73.   It thereby provided much greater

flexibility in the hiring, promotion, and removal of managers.

See 1981 House Doc. No. 6279.   In his letter accompanying the

proposed bill, the Governor stated:   "[T]he implementation of

this plan is essential if we are to encourage more

responsibility and accountability in our managers and if we are

to motivate such managers to assist in the achievement of the

state's objectives in a more economical and efficient manner."

Id. at 1.   The summary of the legislation further indicated that

a modern personnel system required that "managers be recognized

as such -- a group separate and apart from employees; a group,
                                                                  14


in fact, responsible for the supervision of those same

employees."    Id. at 4.

      The legislation also recognized the "demoralizing" effect

of having employees face limited opportunities for advancement.

Id. at 17.    Accordingly, it strongly encouraged the promotion of

lower level managers into middle and upper level management

positions.    Id.   See G. L. c. 30, § 46D ("Whenever it is deemed

practicable . . . appointments to positions allocated to job

groups M-V through M-XII . . . shall be made by promoting

managers of the [C]ommonwealth serving in positions allocated to

job groups M-I through M-IV").     Because lower level managers

would lose their civil service status if promoted to a middle or

upper level management position, the bill further provided

limited protections against the termination of service of anyone

so promoted.    1981 House Doc. No. 6279 at 18.   According to the

Governor, "[A]nyone promoted from such a position to a middle or

upper level position could retain such status or tenure and

could return to the position from which he or she was promoted."

Id.   This would incentivize lower level managers to seek

promotion, despite the lack of civil service protections for

middle and upper management, by ensuring that, once promoted,

they still had a means of returning to their prior civil service

position if their service in a management position was

terminated.    In essence, managers who had been promoted from the
                                                                    15


ranks of civil service employees retained the right to bump back

to their former positions.    This right to bump back or revert

is, as explained above, an important component of the civil

service laws.   See G. L. c. 31, § 39.

    We also look to the commission's interpretation of the

statutory language.   See Commerce Ins. Co., 447 Mass. at 481.

Although the commission is not explicitly charged with

administering G. L. c. 30, this chapter is integrated into the

civil service laws that the commission is required to interpret

and enforce.    Contrast Springfield v. Civil Serv. Comm'n, 469

Mass. 370, 380 (2014) (no special deference owed to commission's

interpretation of G. L. c. 268A, § 25, which makes no mention of

commission and relates to criminal misconduct).    The entire

system must function in a coherent manner as manager reversion

rights ripple through the entire system, directly impacting the

rights of other civil service employees, who may be required to

bump each other.    Cf. Malloch v. Hanover, 472 Mass. 783, 791

(2015) ("We interpret separate sections of statutes as a whole,

to produce internal consistency . . . and to give a 'rational

and workable effect'" [citations omitted]).    Additionally, G. L.

c. 30, § 46D, specifically tasks the commission with

administering the provision's for cause hearings.    Accordingly,

the commission's interpretation of the statute warrants some

deference if it is reasonable.
                                                                  16


    The commission recognized that this case involves an

"unprecedented" request from a former commissioner, the highest

ranking position in the organization, to be reinstated to his

last "uniformed" position in the department after resigning his

post at the request of the Governor.    As the commission

explained, it has a long-standing practice of not treating civil

service resignations as terminations, and § 46D "rationally must

be construed to preserve, not abolish, the traditional, well-

recognized distinction in civil service law between involuntary

'termination' and voluntary resignation,' with involuntary

termination . . . being the sole trigger for any 'right' of an

employee to revert to a lower-level tenured position."

    The commission's consistent enforcement of this distinction

provides important protections for all employees, those bumping

others as well as those being bumped.   The system is designed to

provide a priority of protection against involuntary loss of

employment, rather than to allow one set of employees to

displace another at will.   The commission's adoption of this

important principle in this context is persuasive.   To do

otherwise would create an unfair advantage for upper level

managers over lower level managers and civil service employees.

It would extend the right to "bump" another civil service

employee upon voluntary resignation, whereas under the civil

service laws tenured civil service employees may only "bump"
                                                                  17


into a lower level position upon involuntary separation from

service.   See G. L. c. 31, § 39; Andrews, 446 Mass. at 612 n.3,

619.

       The commission's interpretation also is fully consistent

with the statutory language and purpose.    The references to

termination in § 46D, as explained above, appear to refer to

involuntary loss of employment.    The statutory purpose also

suggests that managerial bumping rights be limited to those who

have been terminated from their managerial positions rather than

those who have decided for other reasons, such as pension

enhancement, to return voluntarily to the civil service ranks,

and thereby potentially force the involuntary termination of

another employee.    The statutory scheme recognizes that promoted

managers are much more vulnerable to terminations, including

terminations for reasons related to changes in administrations

after elections, and § 46D was designed to protect such managers

from job loss for those reasons.    There is nothing in the

legislative history suggesting that it also was intended to

allow managers who were not terminated to use reversion rights

to combine the benefits of both their managerial position and

their former civil service position to the detriment of rank and

file employees.

       Spencer places heavy reliance on the fact that the

department previously allowed other upper level managers to
                                                                    18


revert to their prior civil service position upon resignation.

Based on the record before us, there were indeed a number of

voluntary resignations in the department wherein employees were

allowed to resign and return to their former positions.        To the

extent that we can determine the reasons for these requests from

the record, it appears that the employees were permitted to

revert to their former positions shortly before retirement in

order to retire from a position that would place them in Group

4.

     Retirement benefits for public employees are calculated on

the basis of whichever "Group" an employee belongs to when he or

she retires.   See G. L. c. 32, § 3 (2) (g).    As commissioner,

Spencer belonged to Group 1.   By contrast, certain uniformed

positions, including CO-II, fall within Group 4.     Group 4

employees receive higher pensions at an earlier age than Group 1

because such positions entail significantly more hazardous

duties than positions in Group 1.    Cf. Pysz v. Contributory

Retirement Appeal Bd., 403 Mass. 514, 518 (1988).     "Providing

early retirement incentive to employees with hazardous

duties . . . has the effect of making room for younger employees

better able to perform that type of work."     Id.   See Gaw v.

Contributory Retirement Appeal Bd., 4 Mass. App. Ct. 250, 253-

254 (1976).    Attaining Group 4 status, and the greater
                                                                     19


retirement benefits it provides, was expressly referenced in

Spencer's communications with the Secretary.

    Although we may consider departmental practice, we turn to

the statutory language, legislative history, and administrative

interpretation to determine if there is a statutory basis for

the practice.   See Sterilite Corp., 397 Mass. at 839.    Our own

views are informed by the thoughtful discussion of this practice

in the commission's decision.   As explained by the commission,

prior to 2012, a practice known as "King for a Day" was commonly

employed to allow employees to revert to a uniformed position

for a single day to allow them to retire in Group 4.     Effective

in 2012, the State pension law was changed to prevent these

single-day reversions, but even before this legislative reform,

such contrived or "sham" retirements had been deemed illegal.

See Pysz, 403 Mass. at 518; St. 2011, c. 176, § 8.     Yet, as the

commission further explained:

         "There is no dispute that, over the years, [the
    department] has consented to similar requests of a
    significant number of [department] managers, all below the
    [department] [c]ommissioner level, to be demoted to
    'uniformed-level' positions immediately prior to retirement
    solely to qualify for such an enhanced pension that the law
    arguably allowed. Assuming the law still permits the
    practice, absent further legislative changes, the
    [c]ommission has no power to prevent [the department] (or
    others) from voluntarily choosing to enable its top
    managers to accept demotions to lower level positions
    (tenured or not) and take advantage of the law, although
    the only motivation is to qualify the managers for enhanced
    Group 4 benefits. It is another matter, however, to ask
    the [c]ommission to put its imprimatur on such a
                                                                   20


    questionable practice by asking it . . . to mandate that
    result in this, and, by implication, in every other similar
    case, as a matter of law and public policy."

    We agree with the commission.    Although the department may

have a practice of permitting upper level managers to resign and

revert to their prior civil service positions for public pension

benefits, this does not mean that upper level managers have a

right to such reversion.    We conclude that 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.

    ii.    Voluntariness of Spencer's resignation.   Spencer

separately argues that his resignation was involuntary, because

he was misled or compelled to resign under the threat of

termination.   As we have previously held in the context of

employee benefits under G. L. c. 41, § 111F, an employee's

resignation is voluntary absent a showing of fraud, coercion, or

duress.    See Jones v. Wayland, 374 Mass. 249, 259-260 (1978),

S.C., 380 Mass. 110 (1980).    Neither contention by Spencer rises

to this level.    Nor has Spencer established that his resignation

was made "in reasonable reliance on misinformation received from
                                                                   21


his employer."   Commissioner of the Metropolitan Dist. Comm'n v.

Civil Serv. Comm'n, 25 Mass. App. Ct. 573, 576 (1988).

    Spencer does not allege that the Secretary promised to

reinstate him as a CO-II, merely that she said she would

"consider" it.   He received no guarantee that he could revert,

and he was informed of the "unprecedented" nature of his

request, given his position as commissioner.     He also was aware

of the intense public scrutiny, the Governor's and the

Secretary's insistence that he resign or be terminated, and that

there be no strings attached to his resignation.    No

misinformation or fraud has been alleged here.

    Spencer's claims also do not rise to the level of coercion

or duress.   The commission has consistently ruled that mere

evidence that a resignation was made under threat of discharge

or discipline is not enough.   See, e.g., Forrest v. Weymouth

Fire Dep't, 28 Mass. Civ. Serv. Rep. 480, 482 (2015).     Although

we recognize that Spencer was faced with a difficult choice when

he was told that his resignation would be accepted only if it

was unconditional, it was still a choice he freely made.     See

Monahan v. Romney, 625 F.3d 42, 47 (1st Cir. 2010), cert.

denied, 563 U.S. 976 (2011) ("Because [the head of the

commission] resigned [albeit under pressure from the Governor

and the Governor's staff], his claim that defendants deprived

him of a property interest within the meaning of the Due Process
                                                                       22


Clause necessarily fails"); Worcester v. Civil Serv. Comm'n, 18

Mass. App. Ct. 278, 283 (1984) ("We do not imply that the choice

put to the employee [under the civil service laws] is an easy

one.    However,   . . . it is not our function to ignore the plain

language of the statutes to avoid putting the employees to a

difficult decision").       As the commission explained, "Mr.

Spencer, an experienced senior manager, consciously chose the

resignation route that afforded him the opportunity to write his

own favorably-couched letter highlighting his career, rather

than face a difficult and costly process that would have likely

raised issues better left undisturbed."       The decision to resign

allowed Spencer to leave the department on his own terms and

avoid further intense public scrutiny of his performance during

a high profile investigation of Bridgewater State Hospital.

Choosing to resign allowed Spencer to avoid the termination

process altogether, but in so doing, Spencer lost whatever

statutory entitlement he had to revert to his prior tenured

position.

       b.   Jurisdiction.   Spencer contends that the commission

erroneously granted the department's motion to dismiss on the

basis of lack of jurisdiction.      The commission did mention that

"this case does not invoke the [c]ommission's jurisdiction to

conduct . . . a 'just cause' hearing under the proviso of

[§] 46D," but that assertion is not the rationale for the
                                                                   23


commission's decision.   Rather, as discussed, the commission

evaluated whether Spencer fell within the plain language of the

"termination of his service" provision in G. L. c. 30, § 46D.

Spencer is apparently referencing his argument below that if the

commission chose not to restore his position on the basis of

G. L. c. 30, § 46D, in the alternative, it could do so under

G. L. c. 31 or St. 1993, c. 310, § 1.

     As discussed, G. L. c. 31, § 41, prohibits discharging,

removing, or laying off a tenured civil service employee without

just cause.   Where the appointing authority does not comply with

G. L. c. 31, § 41, and "the rights of [the tenured civil service

employee] have been prejudiced thereby," the employee is

entitled to have his or her employment restored.   G. L. c. 31,

§ 42.   Similarly, under St. 1993, c. 310, § 1, where a person's

civil service rights "have been prejudiced through no fault of

[his or her] own, the [commission] may take such action as will

restore or protect such rights."   Because Spencer resigned, and

did so voluntarily, his rights were not prejudiced, and there is

no basis for relief under either provision.

     c.   Propriety of commission's factual findings.   Finally,

Spencer also argues that the commission improperly made a

finding of fact adverse to Spencer, despite ruling on a motion
                                                                  24


to dismiss.7   In its decision, the commission stated that "for at

least four days (July 24 to July 28), Mr. Spencer, while still

occupying this position of [department] [c]ommissioner, knew

that his resignation had been explicitly made unconditional but

took no action to protest, rescind or dispute that decision,

either before or after knowing those facts."   The commission

later restated that in making the choice whether to resign or

fight, Spencer "[knew] the consequences of both choices."

Spencer contends that this constituted a finding of fact that

was both clearly erroneous and unsupported by substantial

evidence.   We disagree.

     According to Spencer's own affidavit, the Secretary

informed Spencer that "[his] request to revert to [c]aptain

could not be in [his] letter of resignation, and that if [he]

did not allow that request to be removed, [his] employment would

be terminated."   Thus, by Spencer's own account, he was informed

that his resignation letter could not include the condition that

he be allowed to revert.   In other words, he knew that the

resignation letter had to be unconditional.    Yet, Spencer argues


     7 Spencer also argues that the commission improperly cited
and applied the standard of review for motions for summary
decision. The commission contends that it has a long-standing
practice of deciding motions to dismiss under the same standard
as motions for summary disposition, as both are presumptively
evidentiary motions. See 801 Code Mass. Regs. § 1.01(7)(g)(1),
(h). We do not address this issue, as we conclude that the
commission did not make improper findings of material fact.
                                                                       25


that his resignation was not unconditional, because even after

his conversation with the Secretary, he "fully believed and

understood that, by legal right and past practice, he would be

restored to a uniformed position, but that request could not be

in the resignation letter itself."       This too is undermined by

Spencer's own affidavit, which states that the Secretary said

that "she would consider [his] request to be reinstated"

(emphasis added), not that she would grant it.

       Ultimately, Spencer takes issue with the commission's

determination that Spencer's resignation was voluntary.       He

believes the commission "resolved a contested issue of material

fact" against him by doing so.       However, the voluntariness of

his resignation was not simply a factual finding, but a legal

one.       For the reasons discussed above, the commission correctly

concluded that Spencer's resignation was voluntary.8

                                        Judgment affirmed.




       Spencer also argues that the commission was incorrect to
       8

find he was still commissioner from July 24 to July 28, because
the Secretary of the Executive Office of Public Safety &
Security forwarded him the revised letter on July 24, and a
Boston Globe article was published the same day indicating he
had resigned. To the extent there is a factual dispute as to
Spencer's effective resignation date, it is not material. The
commission's analysis, although bolstered by the four-day
timeline, was not contingent upon it.
