Civil service – Police – Reinstatement – Probationary period

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Where (1) a judge dismissed a plaintiff’s complaint seeking reinstatement after he was terminated from his position as a permanent intermittent police officer for the town of Tewksbury and (2) resolution of the plaintiff’s appeal requires a determination of when his probationary period began and ended, this court concludes that the plaintiff’s six-month probationary period started after his appointment on Oct. 27, 2003, and properly was extended for 12 months when he did not actually perform the duties of the position for 30 days during that probationary period.

“At issue is the length of [plaintiff Stephen] Papleacos’s probationary period. Two different statutory provisions affect the probationary period for intermittent police officers — G.L.c. 31, section34, and G.L.c. 41, section96B.

“The town argues that Papleacos’s probationary period began upon his original appointment with a start date of October 27, 2003, relying on the civil service unit certification handbook for permanent intermittent police officers issued by the human resources division of the Executive Office for Administration and Finance… The town then argues that because, due to his attendance at the training academy, Papleacos did not actually perform the duties of the position for thirty days during that probationary period, the probationary period was extended, pursuant to G.L.c. 31, section34, for an additional twelve months.

“Papleacos argues that his probationary period did not commence to run until he completed his tenure at the police academy. … The premise of Papleacos’s argument is that police officers, who are required to undergo training prior to beginning their work as officers, must be treated differently than other civil service employees. Accordingly, he argues that his probationary period expired in September, 2004, prior to his termination, and that he is entitled to all the protections of a tenured employee.

“Papleacos’s argument is off the mark because the statutes involved — G.L.c. 31, section34, and G.L.c. 41, section96B — treat full-time police officers differently from intermittent officers. Reading those statutes in harmony, it is clear that the Legislature sought to distinguish full-time police officers from intermittent or reserve police officers. …

“We have no need to address this specific dispute, as we decide the question on another ground. General Laws c. 41, section96B, requires that full-time officers undergo training at a police academy prior to exercising police powers. … In recognition of the explicit training academy requirement for full-time officers, G.L.c. 41, section96B, first par., as appearing in St. 1994, c. 333, provides that full-time officers ‘shall be exempted from the provisions of chapter thirty-one’ while undergoing training. … Thus, it reasonably may be inferred that this exemption would encompass the probationary period provisions of c. 31, section34. No such exemption, however, appears for intermittent officers.”

Papleacos v. Town of Tewksbury, et al. (Lawyers Weekly No. 11-135-12) (6 pages) (Brown, J.) (Appeals Court) Case was heard by Holtz, J., on motions for summary judgment in Superior Court. Richard K. Sullivan for the plaintiff; Kelly T. Gonzalez, of Long & DiPietro, for the defendants (Docket No. 11-P-756) (Sept. 20, 2012).