Thursday, May 30, 2013

Superior Court upholds Commission decision that employee cannot be disciplined for failing to testify at disciplinary hearing

The Civil Service Commission published a decision this week by the Superior Court affirming the Commission's ruling that a civil service employee cannot be disciplined for refusing to testify at his or her own disciplinary hearing. The decision in City of Worcester v. Civil Service Commission and Dykstra was actually issued in July 2012, but for unknown reason was only published this week on the Commission's website.

The Superior Court in Dykstra agreed with the Commission that the employee could choose whether or not to testify at his own hearing, and Worcester's policy requiring its employees to testify could not be enforced to discipline the employee further for refusing to testify. The Court agreed with the Commission's reasoning that Section 41 disciplinary hearings are intended to protect an employee's due process rights and not serve as an investigatory tool for an appointing authority.

Despite the ruling, civil service employees facing Section 41 hearings should still carefully consider whether or not to testify in their defense. The Superior Court found that the hearing officer could draw a negative inference from the employee's refusal to testify.