The plaintiff appeals from the allowance of the defendants' motion for summary judgment. See Mass. R. Civ. P. 56, 365 Mass. 824 (1974). On June 7, 1974, he brought a petition for a writ of certiorari challenging his discharge from his position as a policeman for the town of Carlisle. He alleged that the selectmen's
Before considering the question whether summary judgment should have been entered against the plaintiff, we must address a procedural question, not discussed by the parties, which arises in part because the plaintiff's petition for a writ of certiorari was filed before the new rules of civil procedure became effective on July 1, 1974, while the balance of the significant procedural events in this case occurred after July 1, 1974. Under our prior practice, when a writ of certiorari was sought, the judge's function was to look at the facts disclosed in the defendant's return and determine whether an error of law was apparent on that record (Bennett v. Aldermen of Chelsea, 361 Mass. 802, 807 ; Davidson v. Selectmen of Duxbury, 358 Mass. 64, 66 , and cases cited; Morrissey v. State Ballot Law Comm'n, 312 Mass. 121, 124-125 ), unless there was an extension of the return (see DiRado v. Civil Serv. Comm'n, 352 Mass. 130, 132-133 ), a challenge to the tribunal's jurisdiction (see Morrissey v. State Ballot Law Comm'n, 312 Mass. 121, 124-125 ), or a challenge to statements of facts extrinsic to the return which bore on the court's exercise of discretion (see Loranger v. Martha's Vineyard Regional High School Dist. School Comm., 338 Mass. 450, 453 ). When the defendants' motion for summary judgment was presented in this case in the Superior Court, however, affidavits were filed in support of and in opposition to the allowance of that motion. The plaintiff filed an affidavit asserting facts not specifically alleged in his petition, which, if true, might support his claim that he had a constitutional right to notice of the reason or reasons for his discharge and to a hearing before the selectmen. Under our prior practice, such extraneous material would not have been considered in passing on a petition for a writ of certiorari because generally there
The petition for certiorari was properly filed and does not lose its effect because the writ of certiorari was abolished by the new rules. Mass. R. Civ. P. 81 (b), 365 Mass. 841 (1974). Since July 1, 1974, relief in the nature of certiorari has been available pursuant to G.L.c. 249, § 4, as appearing in St. 1973, c. 1114, § 289. See St. 1973, c. 1114, § 351. If today a plaintiff files a complaint seeking relief in the nature of certiorari and, as a substantive matter, the case should be decided on the record developed before the governmental agency, the defendant's answer will constitute, in effect, a return, and a judge will decide the case on the basis of facts appearing in the answer. If, however, a plaintiff commences an action stated to be in the nature of certiorari when, in fact, the relief sought could not formerly have been obtained in a certiorari proceeding, but is substantively available, as for instance on a complaint for a declaratory judgment, the court should disregard the label and deal with the substance of the case.
If we were to consider this case solely on the basis of the defendants' answer and return, we might well conclude that there is no error on the face of the proceedings reported in that answer and return. However, the plaintiff's petition has been treated by the parties as seeking a determination of his rights on the basis of facts not appearing in the defendants' answer and return. We decline, therefore, to hold the plaintiff to the technicalities of a petition for a writ of certiorari and will discuss the plaintiff's right to the relief which he seeks in the context of the facts appearing in the pleadings and in the affidavits.
For reasons which appear later in this opinion, we believe that the plaintiff has shown that there are disputed facts which, if resolved in his favor, would entitle
The plaintiff was dismissed as one of the two full time police officers of the town after two meetings between the plaintiff and the selectmen at which allegations against the plaintiff were discussed. No specific charge was made against the plaintiff. The reason given for his dismissal in a letter written on behalf of the selectmen was "unprofessional conduct and lack of candor with the Chief and the Selectmen." The plaintiff asserts that his dismissal was the result of false, retracted charges that he had committed adultery with a married woman living in the town. He was not confronted with any witness concerning that accusation. His affidavit implies that his reputation was damaged because the allegations against him, known to other residents of the town, were confirmed by his dismissal. He states further that he has been "deprived of continuing employment" as a police officer and "prevented from seeking employment" because "[i]n fact the Defendants are using retracted allegations as grounds for bad references."
In his petition, the plaintiff acknowledged that the town's police department was governed by G.L.c. 41, § 97, which provides that, in towns which have adopted it, police officers serve "at pleasure." He alleged that § 97 was unconstitutional because it denied him procedural due process and equal protection of the laws in violation of arts. 1, 10, 11, and 12 of the Declaration of Rights of the Constitution of the Commonwealth and the Fourteenth Amendment to the Constitution of the United States.
The plaintiff has no property interest in employment as a police officer by the town. Section 97 permits the
As so construed, § 97 does not violate the Fourteenth Amendment's guaranty of equal protection of the laws. While police officers in municipalities governed by G.L.c. 41, § 97A, may be discharged only for cause after a hearing, different treatment under § 97 is acceptable constitutionally, because there is a basis for that different treatment reasonably related to the purposes which the statute seeks to accomplish. Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 545 (1974). Maher v. Brookline, 339 Mass. 209, 213 (1959). See Commonwealth v. Leis, 355 Mass. 189, 197 (1969). The provisions for hiring, firing, and supervision of police officers in a municipality with a large police force may be unwieldy and inappropriate in a small town such as Carlisle, which has only two full time officers. The choice allowed by §§ 97 and 97A is a reasonable way to facilitate the proper functioning of quite different police departments.
Our conclusion that the plaintiff has no property interest in continued employment by the town does not end the consideration of whether the plaintiff was entitled to notice and a hearing before the selectmen. The plaintiff relies on the statements in the opinion of the Supreme Court in Regents of State Colleges v. Roth, 408 U.S. 564,
The fact of discharge, standing alone, "is seldom serious enough to warrant a hearing." Suarez v. Weaver, 484 F.2d 678, 680 (7th Cir.1973). Accord, Buhr v. Buffalo Pub. School Dist. No. 38, 509 F.2d 1196, 1199 (8th Cir.1974). While dismissal for "any reason other than reduction in force is likely to be to some extent a reflection on ... ability, temperament, or character" (Medoff v. Freeman, 362 F.2d 472, 476 [1st Cir.1966]), "not every dismissal attains constitutional proportions." Jenkins v. United States Post Office, 475 F.2d 1256, 1257 (9th Cir.), cert. denied, 414 U.S. 866 (1973).
In order to constitute a deprivation of liberty based on serious damage to one's standing in the community, more must be shown than mere allegations of incompetence or inefficiency at a particular job. LaBorde v. Franklin Parish School Bd., 510 F.2d 590, 593 (5th Cir.1975). Abeyta v. Taos, 499 F.2d 323, 327 (10th Cir.1974). Jablon v. Trustees of Cal. State Colleges, 482 F.2d 997, 1000 (9th Cir.1973), cert. denied, 414 U.S. 1163 (1974). Russell v. Hodges, 470 F.2d 212, 217 (2d Cir.1972). Harnett v. Ulett, 466 F.2d 113, 117-118 (8th Cir.1972). Statements that continued employment is not in the best interests of the employer,
The question before us then is whether facts properly asserted by the plaintiff, if true, support his claim that the principles expressed in the Roth opinion grant him the right to notice and a hearing. We think dismissal because of immoral, illegal conduct, such as adultery, entitles the employee to notice of the reasons for his discharge and a hearing on them, if those charges have been or are likely to be disseminated either to members of the public or to prospective employers. See Buhr v. Buffalo Pub. School Dist. No. 38, 509 F.2d 1196, 1199 (8th Cir.1974); Wellner v. Minnesota State Junior College Bd.,
Viewing the plaintiff's affidavit and inferences which may be drawn from it in the light most favorable to the plaintiff (Hub Associates, Inc. v. Goode, 357 Mass. 449, 451 ), and considering the facts set forth in the defendants' answer and return, we believe that there is a dispute concerning facts which are material to the issue whether the plaintiff was entitled to notice of the reason
The judgment for the defendants should be vacated, and there should be further proceedings in the Superior Court. If, in those further proceedings, the plaintiff establishes that he was entitled constitutionally to notice of any charges against him and to a hearing on them before the board of selectmen, consideration will have to be given to whether the proceedings already held before the board of selectmen were sufficient to satisfy the plaintiff's constitutional rights,
The order granting summary judgment is vacated, and the case is remanded to the Superior Court for further proceedings in accordance with this opinion.