A recent Appeals Court decision, Thornton v. Civil Service Commission, changes the way appointing authorities must count days for the purpose of determining the procedure to follow when suspending a tenured civil service employee.

Massachusetts General Laws Chapter 31, Section 41 sets forth the procedure to be used when suspending a tenured employee.  If the duration of the suspension is a "period of more than five days," the appointing authority must conduct a hearing before imposing the suspension.  If the suspension is for a "period of five days or less," the appointing authority need only conduct a hearing if the tenured employee requests it within 48 hours after receiving written notice of the suspension.

In Thornton, the Fire Chief for the Town of Andover suspended Lieutenant Thornton for four regularly scheduled 24-hour shifts between June 22, 2008, at 8 a.m. and July 7, 2008, at 8 a.m.  Believing Section 41 referred to the number of work days for which he suspended Thornton, the Fire Chief did not conduct a hearing before suspending Thornton.

Thornton appealed his suspension to the Civil Service Commission asserting, among other things, the Fire Chief violated Section 41 by failing to conduct a hearing prior to imposing the suspension.  He argued the Fire Chief had to conduct the hearing before the suspension because the suspension was for more than five days.  The Commission rejected Thornton's contention that the Fire Chief failed to conduct a hearing in violation of Section 41.  Instead, the Commission agreed with the Fire Chief and reasoned Section 41 referred to work days, not calendar days.

The matter then found its way to the Appeals Court.  The Appeals Court, distinguishing the phrase "a period of" from other statutory references to five days, concluded that a period of five days means five consecutive calendar days, excluding Saturdays, Sundays and holidays, which are not included by statute, not five work days.

Based on the Appeals Court's decision, appointing authorities must now consider how many calendar days will be covered when contemplating the suspension of a tenured civil service employee.  If the appointing authority will impose the suspension over more than five consecutive calendar days, excluding Saturdays, Sundays and holidays, the appointing authority must conduct a hearing prior to imposing the suspension regardless of the number of work shifts for which the employee is actually suspended.