Opinion
19-P-432
06-11-2020
ANNE HARTNETT v. CIVIL SERVICE COMMISSION & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal concerns Anne Hartnett's request for a job reclassification from tax examiner III (TE III) to tax examiner IV (TE IV). The Department of Revenue (DOR) denied the request and Hartnett appealed to the Civil Service Commission (commission), which denied her appeal. She sought review in the Superior Court, which granted judgment on the pleadings to the DOR. We affirm.
Background. We summarize the facts found by the hearing examiner. Hartnett is employed with the DOR in the filing enforcement unit of its trustee tax bureau within the audit division. Hartnett was promoted to her current position as TE III in 1997.
The relevant time period for purposes of this appeal is March 2015, the date Hartnett indicated her job duties changed, to September 14, 2015, the date she filed a request for reclassification. In March 2015, Hartnett began working on customs cases, by which she and another employee corresponded with taxpayers who have been identified by DOR as failing to pay the requisite taxes on purchases from outside of the United States. Prior to March 2015, Hartnett had a notice of intention to assess (NIA) delegation of up to $10,000 and the authority to perform accounting adjustments of plus or minus $1,000; she had no supervisory responsibilities; and her group was not responsible for amended returns or abatements.
Hartnett argued in her appeal to the commission that, "As of March 2015, I have been working a custom's project which required me to assess tax over ten thousand dollars . . . I believe that by assessing over my designated threshold, completing adjustments over ten thousand, and amending and releasing refunds over the level distinguishing duties, I am working out of my title."
The commission held an evidentiary hearing where it heard testimony from Hartnett, her supervisor, Karen Sheehan, and Geralyn Page, manager of the classification unit of the DOR's human capital development group. The hearing examiner reopened the evidence to hear testimony from Sandra Antonucci, a DOR classification analyst who made the initial decision denying Hartnett's reclassification request. In determining whether Hartnett performed duties of a TE IV, the commission specifically credited Sheehan's testimony that Hartnett had no authority to make accounting adjustments in excess of $10,000, though the DOR's computer system settings would not have stopped such an adjustment. The commission noted that Hartnett did not offer any corroboration that she was ever given actual authority to perform accounting adjustments over $10,000. The commission also found that Hartnett's ability to issue NIAs over her TE III threshold for NIAs related to the custom project, was "not indicative of the trust and responsibility contemplated by the TE IV." Instead, it was a "clerical function formerly performed by non-TE staff." As for the four NIAs Hartnett issued over the $10,000 threshold, they were "a negligible amount of time spent on this 'duty.'" The commission subsequently found that Hartnett failed to show that "she performs the duties of a TE IV more than fifty percent of the time," and denied her appeal from the denial of her reclassification request. Hartnett sought review in the Superior Court pursuant to G. L. c. 31, § 44, and G. L. c. 30, § 14. The Superior Court granted the commission's motion for judgment on the pleadings.
Standard of review. An appellate court "review[s] the commission's decision under G. L. c. 31, § 44," and it "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." Boston Police Dep't v. Civil Serv. Comm'n, 483 Mass. 461, 469 (2019), quoting G. L. c. 30A, § 14 (7). "Substantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Boston Police Dep't, supra, quoting G. L. c. 30A, § 1 (6). "The party appealing bears a heavy burden because 'we give due weight to the experience, technical competence, and specialized knowledge of the commission.'" Spencer v. Civil Serv. Comm'n, 479 Mass. 210, 215 (2018), 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." Brackett v. Civil Serv. Comm'n, 447 Mass. 233, 242 (2006), quoting Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992).
Discussion. Hartnett argues that deferring to the commission's decision is not appropriate here because it failed to fulfill its adjudicatory responsibility pursuant to G. L. c. 31, §§ 2, 5, and 6, and as a neutral arbiter. Specifically, Hartnett takes issue with the chairman of the commission reopening the hearing to allow testimony from an additional witness, Antonucci. Hartnett contends that by opening the hearing, the commission allowed the DOR a further opportunity to present its case and the commission subsequently acted as "an advocate on behalf of DOR."
Prior to the hearing, the chairman explained why he decided to reopen the hearing both by e-mail and at the start of the hearing. At no point did Hartnett object to the reopening of the hearing to take Antonucci's testimony, though Hartnett had the opportunity to object. In fact, she objected to a different issue; DOR's request to submit additional evidence of her transactions at the hearing. Therefore, Hartnett cannot successfully object to the decision to reopen the hearing now. See Doucette v. Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 534-535 (2014), quoting Thomajanian v. Odabshian, 272 Mass. 19, 23 (1930) ("A party having knowledge of facts possibly indicating bias or prejudice on the part of an arbitrator, referee, juror or other person having similar functions cannot remain silent and thereafter on that ground successfully object to the decision"). In any event, Hartnett acknowledges that the commission did not rely on this testimony. Reopening the evidence had no material impact on the commission's determination.
Hartnett's claim that the commission is "willing to engage in partisanship in favor of DOR" because civil service positions within DOR should be filled through civil service examinations has no merit. This case is an appeal from a classification denial, which rightly falls under G. L. c. 30, § 49. Hartnett's reliance on Blasi v. Department of Revenue, 28 MCSR 15 (January 9, 2015), Gale v. Department of Revenue, 23 MCSR 534 (September 24, 2010), and Sherman v. Randolph, 472 Mass. 802 (2015), are misplaced because those cases all deal with provisional appointments or promotions of one candidate over another, neither of which is at issue in this case.
Hartnett next argues that the record supported a decision in her favor. We disagree. We "must accept the factual determinations made by the agency if [we] find[] they are supported by substantial evidence." McGuiness v. Department of Correction, 465 Mass. 660, 668 (2013), quoting School Comm. of Boston v. Board of Educ., 363 Mass. 125, 128 (1973). Determination of the credibility of the witnesses is within the commission's exclusive function. See Pilon's Case, 69 Mass. App. Ct. 167, 169 (2007). Hartnett and Sheehan offered conflicting testimony whether Harnett had permission to make accounting adjustments in excess of $10,000 and the commission credited Sheehan. We discern no reason to disturb this credibility determination. The fact that the computer system may not have prevented Hartnett from making an adjustment in excess of $10,000 does not indicate that she had permission to do so.
Hartnett also contends that the commission narrowly defines "accounting adjustments" to improperly exclude the issuance of NIAs. Hartnett fails to cite any authority that establishes that issuing NIAs constitute accounting adjustments. Rather, the commission's determination is supported by an earlier decision where it found NIAs "involve[] assessing a tax liability against a taxpayer" which differs from accounting adjustments that involve "adjusting a tax liability -- upwards or downwards -- after the liability has been assessed." Italiano v. Department of Revenue, 18 MCSR 367 (Nov. 7, 2005). Hartnett, Sheehan, and Page also all testified to the differences between issuing NIAs and accounting adjustments. The evidence substantially supports the commission's determination here.
Hartnett argues that the commission erroneously found that she did not conduct complex, specialized desk audits that involve multiple audit issues. The record reflects that Hartnett did not determine the underlying tax liability, but rather, she received the value from the United States Customs Service (U.S. Customs). The evidence shows that another technical group with no tax knowledge used the same U.S. Customs information to issue the NIAs, thus supporting the commission's determination that Hartnett was not performing a specialized task.
Accordingly, we conclude that Hartnett has failed to meet her heavy burden, as there is substantial evidence to support the commission's determinations.
Judgment affirmed.
By the Court (Henry, Desmond & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 11, 2020.