Opposition Brief — Boston Firefighters Union, Local 718 v. Boston Chapter, N. A. A. C. P., Inc.

oe

») &

Nos. 84-1393, 84-1430.

In the

Supreme Court of the United :

OCTOBER TERM, 1984.

BOSTON FIREFIGHTERS UNION, LOCAL 718,

PETITIONER,

V.

BOSTON CHAPTER, N.A.A.C.P., INC., ET AL.,

RESPONDENTS.

BOSTON POLICE PATROLMEN’S ASSOCIATION, INC.,

PETITIONER,

Vv

PEDRO CASTRO, ET AL.,

RESPONDENTS.

Brief of Respondents in Opposition to Petitions

for Writs of Certiorari to the United States

Court of Appeals for the First Circuit.

James S. DITTMAR*,

Sixty State Street,

Boston, Massachusetts 62109.

(617) 227-7200

Of Counsel: BARBARA R. ARNWINE,

RICHARD R. Lavin, LAWYERS’ COMMITTEE FOR CIVIL

MATTHEW D. BAXTER, RIGHTS UNDER LAW OF THE

WIDETT, SLATER & GOLDMAN, P.C., BOSTON Bar AssociaTion,

294 Washington Street,

Sixty State Street, Bes 7 : nieee

Boston, Massachusetts 02109. ton, Massachusetts

(617) 227-7200 (617) 482-1145

Counsel for Respondents

\ *Counsel of Record

OATES Seas BOSTON. MASSACHUSETTS

_ BEST AVAILABLE COPY 7

Bi. nat »\ ey

Question Presented.

Should the Court grant certiorari to review a mootness de-

cision which the Court has already considered and committed

to the court of appeals, which has no applicability beyond the

circumstances of these cases, which is challenged by reliance

on matters not in the record and involving undecided issues

of state law and which is in any event correct.

: : rr —

Se pies Ee ee a

Table of Contents.

Opinions Below

Constitutional and Statutory Provisions

Statement of the Case

. Prior Proceedings

. The Political Resolution

. Disposition by the Court in 1983

. 1983 Proceedings on Remand

Disposition by the Court in 1984

The Court of Appeals’ 1984 Decision on Re-

mand

Reasons for Denying the Writs

1. The Court of Appeals’ Mootness Decision Does

Not Present a Substantial Federal Question

I]. The Petitions Rely Upon Matters of Fact Not in

the Record and Involve Undecided Issues of State

Law

Hil. The Court of Appeals Correctly Determined that

These Cases are Moot

Conclusion

Appendix

AMOADW>

Table of Authorities Cited.

CASES.

Alejandrino v. Quezon, 271 U.S. 528 (1926)

American Book Co. v. Kansas, 193 U.S. 49 (1904)

Boston Chapter, NAACP v. Beecher, 716 F.2d 931

(Ist Cir. 1983)

Boston Chapter, NAACP vy. Beecher, 749 F.2d 102

(Ist Cir. 1984)

Boston Firefighters Union, Local 718 v. Boston Chap-

ter, NAACP, Inc., 461 U.S. 477 (1983)

Firefighters Local Union No. 1784 v. Stotts, __ U.S.

—., 104 S.Ct. 2576 (1984)

nt WN N WN —

A)

13

1,6

4

passim

il TABLE OF AUTHORITIES CITED.

Maness v. Meyers, 419 U.S. 449 (1975) 10

McPherson, et al. v. City of Boston Fire Department,

Appointing Authority, Massachusetts Civil Service

Commission, Appeal No. D-1280 (November 28,

1983) 10

Oil Workers Union v. Missouri, 361 U.S. 363 (1960) 13

Powell v. McCormack, 395 U.S. 486 (1969) 13

Town of Stow v. Marinelli, 352 Mass. 738, 227 N.E.2d

708 (1967) 10

United States v. United Mine Workers of America, 330

U.S. 258 (1947) 10

W.R. Grace and Co. v. Local Union 759, 461 U.S. 757

(1983) 10

STATUTES.

United States Constitution

Art. HI, § 2. cl. 1 2

Massachusetts General Laws

ce. 31, § 33 12

c. 31, § 43 2.9

1982 Massachusetts Acts

c. 190, § 25 2, 3, 12

Nos. 84-1393, 84-1430.

In the

Supreme Court of the United States.

OCTOBER TERM, 1984.

BOSTON FIREFIGHTERS UNION, LOCAL 718,

PETITIONER,

Vv.

BOSTON CHAPTER, N.A.A.C.P., INC., ET AL.,

RESPONDENTS.

BOSTON POLICE PATROLMEN’S ASSOCIATION, INC.,

PETITIONER,

Vv.

PEDRO CASTRO, ET AL.,

RESPONDENTS.

Brief of Respondents in Opposition to Petitions

for Writs of Certiorari to the United States

Court of Appeals for the First Circuit.

Opinions Below.

Respondents agree with the identification of the opinions

below stated in the petitions for certiorari, but note that the

consolidated opinion on remand of the United States Court of

Appeals for the First Circuit has been reported at 749 F.2d

102 (1st Cir. 1984).

2

Constitutional and Statutory Provisions.

The petitions involve U.S. Const. Art. III, § 2, cl. 1, which

is reproduced at 6a of the Appendix to the petition of Boston

Firefighters Union, Local 718.

The statutes involved are 1982 Mass. Acts, c. 190, § 25,

which is reproduced at page 6a of the Appendix to the petition

of Boston Firefighters Union, Local 718, and Mass. G.L.

c. 31, § 43, which is reproduced at page la of the Appendix

to this brief.

Statement of the Case.

These petitions seek to have the Court grant certiorari in

order to decide a question of mootness which the Court has

already considered and committed to the court of appeals.

Further review by the Court is unnecessary.

A. Prior Proceedings.

The court of appeals found moot a controversy which arose

in the course of ongoing judicial adminstration of relief in

consolidated employment discrimination cases relating to Bos-

ton’s police and fire departments. The cases have lengthy

histories, with which the Court is familiar. See Supreme Court

Nos. 81-185, 82-246, 82-259. The controversy which the court

of appeals found moot, however, was more recent and short-

lived.

In July 1981, assertedly in response to a fiscal crisis, the

City of Boston instituted a massive reduction in force program

in its police and fire departments. The program was to be

administered in accordance with the Massachusetts civil service

3

Statute, which requires layoffs in reverse order of seniority.

Black and Hispanic police officers and firefighters challenged

the layoff program by applying to the district court for modifi-

cation of prior court orders in order to prevent the City from

reducing their proportional representation below the levels ob-

taining at the time the program commenced.

The minority officers’ requests for modification were op-

posed by the state civil service officials and intervening unions.

They were not opposed by the City or its police and fire

commissioners.

The district court held that the layoff program, if adminis-

tered in accordance with the Massachusetts seniority statute,

would interfere with the court's ongoing remedial process. By

orders dated August 7, 1981, the court enjoined the police and

fire commissioners from reducing the percentage of minority

officers obtaining at the commencement of the layoff program.

The court of appeals affirmed.

B. The Political Resolution.

In June 1982, Massachusetts enacted legislation resolving

the City’s asserted fiscal crisis and rescinding the reduction in

force program. 1982 Mass. Acts c. 190. The statute, locally

known as the Tregor Act, provided the City with new funds

and required the reinstatement of all police officers and fire-

fighters who had been laid off as a result of the reduction in

force program. /d. § 25. The Tregor Act also provided that

the City shall not terminate or otherwise separate any reinstated

personnel from active service “in the future for lack of funds.”

Id. Finally, the Act required the maintenance of minimum

staffing levels in the police and fire departments through June

30, 1983. /d. As a result of the Tregor Act, the imminent

threat of layoffs was removed and the police and fire depart-

ments reinstated with restored seniority all personnel who had

4

been terminated during the City’s 1981 reduction in force

program.

C. Disposition by the Court in 1983.

Following enactment of the Tregor Act, the police and fire

unions and the state civil service officials petitioned for cer-

tiorari. The Court granted certiorari, and on April 18, 1983

the Court heard oral argument on the merits. In their brief on

the merits and at oral argument, the minority officers suggested

that the controversy giving rise to the lower courts’ decisions

had become moot.

On May 16, 1983, the Court issued a per curiam decision

which vacated the judgment of the court of appeals and re-

manded the cases for consideration of mootness in light of the

Tregor Act. Boston Firefighters Union, Local 718 v. Boston

Chapter, NAACP, Inc., 461 U.S. 477 (1983).

D. /983 Proceedings on Remand.

On August 31, 1983, the court of appeals held that the

minority officers’ motions to modify the prior remedial decrees

were moot. Boston Chapter, NAACP v. Beecher, 716 F.2d

931 (Ist Cir. 1983). The court of appeals held that “to avoid

mootness a case must present both live issues and parties with

legally cognizable interests.” /d. at 933. In light of the Tregor

Act’s mandatory reinstatement of all laid-off officers with re-

stored seniority and its removal of the imminent threat of

further layoffs, the court of appeals concluded that the minority

officers “now lack the ‘personal stake’ necessary to keep alive

the controversy which engendered this proceeding” and that a

ruling by the federal court “would amount to no more than an

advisory opinion.” /d. The court of appeals vacated the district

court's August 7, 1981 orders and remanded the cases to the

5

district court with instructions to dismiss the motions for mod-

ification as moot.

On December 30, 1983, the district court entered a final

order vacating its August 7, 1981 orders and dismissing the

minority officers’ motions for modification.

E. Disposition by the Court in 1984.

Following the court of appeals’ 1983 decision on rennaiid,

the police and fire unions again petitioned for certiorari. The

State civil service defendants did not. Neither, of course, did

the City defendants.

While these petitions for certiorari were pending, the Court

decided Firefighters Local Union No. 1784 v. Stotts, — U.S.

—. 104 S.Ct. 3576 (1984) (“Stors”). In that case, the Court

ruled upon the scope of judicial relief under Title VII and its

permissible impact upon bona fide seniority systems at a time

of layoffs. These issues were similar to the issues on the merits

which had previously been presented in the Boston cases when

minority officers had sought to restrain Boston's layoff pro-

gram. The Court in Storts also considered whether the con-

troversy in that case had become moot pending appeal.

On July 5, 1984, the Court granted certiorari in these cases.

The Court vacated the 1983 judgment of the court of appeals

and remanded to that court for further consideration in light

of Srotts.

F. The Court of Appeals’ 1984 Decision on Remand.

In compliance with the Court's mandate , the court of appeals

thoroughly reviewed the impact of Srorts on these cases. The

parties were invited to identify matters for consideration by

the court and were provided with an opportunity to brief and

argue the issue of mootness fully. Following briefing and oral

6

argument, and based upon the court’s review of the entire

record, on December 7, 1984, in a per curiam decision, the

court of appeals concluded that these cases are moot. Boston

Chapter, NAACP v. Beecher, 749 F.2d 102 (Ist Cir. 1984).

Upon careful consideration, it was evident to the court of

appeals that these cases “differ[ed] from Srotts, in respect to

mootness, in several important ways.” /d. at 104. First, in

Stotts, the minority officers had received permanently en-

hanced seniority as a result of the district court’s injunction.

In these cases, however, “the parties agree that there is no

seniority problem or issue.” /d. Second, unlike in Stotts, the

City employer, which is a necessary party to any disposition

of back pay claims, is not a real party participating in these

cases, and the court of appeals held that “[sJince no party

before [the court] has any financial stake in denying the laid-off

employees’ back pay, it is difficult to see how this matter can

create a controversy between them.” /d. Third, the district

court’s 1981 orders in these cases had already been vacated.

Therefore, to hold that these cases are not moot “would mean

resurrecting a dead order solely for the purpose of then striking

it down on the merits.” /d. Fourth, there is no longer any

controversy about the merits or about the future impact of any

prior ruling of the district court given the intervening Stotts

decision. /d.

Giving consideration both to these distinctions and to basic

principles of federal jurisdiction, the court of appeals concluded

that the “legally correct approach” was to vacate the district

court’s 1981 orders as moot. /d. |

On January 4, 1985, the district court once again entered

an order dismissing as moot the minority officers’ motions for

modification.

7

Reasons for Denying the Writs.

I. THE COURT OF APPEALS’ MOOTNESS DECISION DorEs Not

PRESENT A SUBSTANTIAL FEDERAL QUESTION.

Petitioners seek certiorari review of a decision which does

not warrant such attention. The court of appeals addressed a

question of mootness in light of facts and in the context of

proceedings which are peculiar to these cases alone. Further

decision regarding the particular mootness issues presented

here will have no impact beyond the confines of these cases.

When the Court first granted certiorari in these cases in

1982, the decision then under review addressed a question of

national importance regarding the scope of judicial relief under

Title VII and its periissible impact, at a time of layoffs, on

bona fide seniority systems. Subsequently, however, the Court

has answered that question in Stotts. As a result, these cases

no longer present an unresolved question of public importance

which warrants decision by the Court. They present a question

of mootness alcne.

Mootness, however, depends peculiarly upon the unique set

of factual circumstances and claims which obtains in any par-

ticular case. Indeed, the Court implicitly recognized this fact

when it remanded these cases to the court of appeals following

the Stotts decision. The only question presented here, therefore,

does not raise any issue of unresolved federal law, national

concern or even public importance. The scope of any further

decision by the Court would be limited to the facts of these

cases alone.

In any event, to the extent that the Court may wish to

announce principles of mootness in cases involving employ-

ment layoffs, it has already spoken in Stotts. The express

purpose of the Court’s 1984 remand was to enable the court of

8

appeals to apply the principles announced in Srotts. This the

court of appeals has done, and further review would serve no

significant purpose. '

Il. THE PETITIONS RELY UPON MATTERS OF FACT NOTIN THE

RECORD AND INVOLVE UNDECIDED ISSUES OF STATE LAW.

These petitions are based on petitioners’ assertion of factual

matters which are not in the record and on their questionable

speculation that a decision by the Court may influence appli-

cation of state law in separate state proceedings. The Court

should decline review under such circumstances.

The unions’ petitions are premised on the notion that the

Court should grant review and decide a mootness question in

order to reach a decision on the merits which might in turn

have some effect upon the resolution of certain union members’

claims for back pay brought in Massachusetts Civil Service

Commission proceedings. See Firefighters’ petition at 6; Police

Officers’ petition at 15. This assertion cannot be adequately

evaluated by the Court, however, since the record below con-

tains virtually no information relating to these back pay claims

or to the nature or status of any such state proceedings. To be

sure, the unions asserted to the court of appeals, as they do

to the Court in their present petitions, that back pay claims

had been brought by some officers. Beyond that, however,

there is nothing in the record which indicates the nature of the

‘Should the Court deem further review to be appropriate, the Court should

base its decision on a complete and thorough examination of the facts of these

cases. Summary disposition of these cases, as suggested by the firefighters’

union, would be wholly inappropriate. If it were appropriate, the Court could

have taken such summary action in 1984 when these cases were last before

the Court. Furthermore, only a reasoned opinion by the Court would clarify

any error by the court of appeals.

9

claims assertedly made in the administrative proceedings,

identifies the issues raised by the parties whe are participating

in those proceedings, clarifies the present state of those pro-

ceedings, discusses the state law applicable to those claims or

suggests how any federal court decision will impact those state

proceedings. The unions’ petitions are understandably devoid

of citation to any record material which would supply this

information.’

In any event, the back pay claims must be made under state

law, and it is likely that the Massachusetts Civil Service Com-

mission will resolve, or has already resolved, those claims

independently and regardless of any disposition of the federal

court proceedings. The issue raised in the civil service proceed-

ings presumably is whether, as a matter of state law, the layoffs

of complaining officers were “justified.”” Massachusetts Gen-

eral Laws c. 31, § 43. If resolution of the federal controversy

is unnecessary to disposition of this issue of state law, then

even the unions — or, more precisely, some of their members

— would have no basis to claim an interest in the outcome of

the federal proceedings.

On the one hand, Massachusetts law, as well as federal law,

suggests that federal appellate review of the August 7, 1981

* The police union petition does not in fact assert that there is any proceeding,

of any sort, presently pending with respect to the impact of the layoff program

upon police officers. The sion, thus, does not even assert, let alone substantiate

by record citation, the existence of any pending back pay claim which a decision

by the Court might ever influence. Respondents, in fact, understand that on

February 11, 1982, the Massachusetts Civil Service Commission denied police

officers’ claims for back pay, that no appeal has ever been taken from that

decision to the Massachusetts courts and that those proceedings are, accord-

ingly, closed. The police union, consequently, seeks an academic, not even

an advisory, decision. The firefighters’ petition, on the other hand, asserts that

there are state administrative proceedings which are pending, but it concedes

that there are numerous other issues, distinct from any issue relating to the

validity of the district court’s August 7, 1981 orders, which may be dispositive

of those claims for back pay. Firefighters’ petition at 5.

10

orders, even if it resulted in a reversal, would have no bearing

upon the state law issue. Boston’s 1981 layoffs were im-

plemented pursuant to federal court orders. As such, it would

appear that they were justified at the time they were im-

plemented. This justification would not be negated by sub-

sequent reversal of the orders, for a court order validly entered,

when the court has both subject matter and personal jurisdic-

tion, gives rise to a plain duty to obey until the order is stayed,

vacated or reversed. E.g. Town of Stow v. Marinelli, 352

Mass. 738, 743-744, 227 N.E.2d 708, 713 (1967); Maness v.

Mevers, 419 U.S. 449, 458-459 (1975): United States v. United

Mine Workers of America, 330 U.S. 258, 293 (1947). Indeed,

this was precisely the reasoning adopted by a hearing officer

for the Massachusetts Civil Service Commission in a November

28, 1983 decision recommending that the Commission deny

certain non-minority firefighters’ claims for back pay. Recom-

mended Decision, McPherson, et al. v. City of Boston Fire

Department, Appointing Authority, Massachusetts Civil Serv-

ice Commission, Appeal No. D-1280 at 15 (November 28,

1983). If this ruling is correct as a matter of Massachusetts

law, then no federal court reversal of the district court's August

7, 1981 orders would have any bearing on any back pay claim

under state law.

On the other hand, non-minority officers might also argue,

or the Civil Service Commission might rule, that under Mas-

sachusetts law the City of Boston was not justified in laying

off senior officers notwithstanding the entry of the district

court’s orders. It is possible, of course, that the City may have

been subject to dual legal obligations — one arising from

operation of state civil service law and the other arising from

entry of a federal court order — in the event that it elected to

proceed voluntarily with the layoff program. Cf. W.R. Grace

and Co. v. Local Union, 461 U.S. 757 (1983). If this were

the case, federal appellate review would similariy have no

bearing on resolution of any back pay claim under state law.

1]

Finally, even assuming that a decision regarding the appro-

priateness of the district court’s 1981 orders may have some

impact on the state law claims for back pay, that issue may

be adequately decided by the Massachusetts Civil Service Com-

mission. The unions do not assert that there will be a different

disposition of the back pay claims if it is the Civil Service

Commission, rather than the federal court, that decides the

federal issue. Furthermore, there is no reason to question the

ability of the Civil Service Commission to reach the correct

result. The district court’s 1981 orders have been vacated and

have no precedential vitality. The principles which will control

any determination of federal issues by the Civil Service Com-

mission will be derived, accordingly, from the Court’s decision

in Stotts, not from the district court’s 1981 orders. Therefore,

regardless of whether certiorari is granted in these cases, an

alternative remedy exists by which the-unions’ members may

recover any back pay to which they may be entitled under

state law. Review of these cases by the Court is simply unneces-

sary.

IIl. THE COURT OF APPEALS CORRECTLY DETERMINED THAT

THESE CASES ARE Moot.

Following the Court’s remand, the court of appeals fully

reviewed the facts of these cases in light of Stotts. The court

of appeals correctly determined that these cases differed from

Stotts in several important ways and that, unlike Srotts, these

cases are moot.

When Srotts reached the Court, both the minority officers

and the petitioning City of Memphis had concrete interests

which continued to be adverse and which could be resolved

by a decision on the merits. In these cases, by contrast, the

parties have no continuing controversy to resolve.

12

First, in Stotts, the minority officers and the City of Memphis

continued to dispute the applicability of the lower court’s order

to future layoffs. Stotts, 104 S.Ct. at 2583. There is no such

dispute here. The district court’s 1981 orders have already

been vacated, and, in light of the Court’s decision in Stotts,

the minority officers no longer defend them.’

Second, the minority officers in Stotts had gained, through

operation of the district court’s injunction, permanently en-

hanced seniority benefits. /d. at 2584-85. Adjudication on the

merits, consequently, would “affect respondents themselves.”

Id. Indeed, Justice O'Connor found this point critical, noting

that minority officers had “not waived” their enhanced seniority

benefits and that a decision on the merits would resolve their

claims to these benefits “in the very litigation in which they

were originally won.” /d. at 2591 (O’Connor, J., concurring).

Unlike Srotts, the minority officers in these cases have gained

no seniority benefits as a result of the district court's 198]

orders. Pursuant to the Tregor Act, all officers who were

terminated in 1981 have been reinstated, 1982 Mass. Acts

c. 190, § 25, and, in accordance with Massachusetts civil

service law, all reinstated officers have had their seniority

restored, Mass. G.L. c. 31, § 33. Consequently, a decision

on the merits could have no impact on the minority officers’

seniority rights. In contrast with Srotts, the minority officers

in these cases have absolutely no stake in defending the 1981

orders. Regardless of whether the 1981 orders are affirmed or

reversed, there is no interest of the minority officers which

will be advanced, maintained, impaired or destroyed. Except

as to matters of philosophy and principle, the minority officers

are, in a word, indifferent.

‘Before the court of appeals, the minority officers also argued that the district

court’s 1981 orders were never intended to apply to future layoffs. The court

of appeals found it unnecessary to reach this argument, since the 1981 orders

had been vacated and since the Supreme Court had reached a contrary result

on the merits in Stotts.

13

Third, the lower court’s order in Sfotts restrained the City

of Memphis from granting back pay to the laid-off firefighters,

and for that reason the City sought appellate review. Srotts,

104 S.Ct. at 2584. Here, however, the City of Boston has

never been restrained from awarding back pay and has never

challenged any restraint imposed upon it. In fact, the City has

never taken a position on the merits of the federal issues during

the entire course of the federal court proceedings. Moreover,

minority officers have never sought to deprive non-minority

officers of pay and have no interest now in opposing any award

of back pay. If there is a back pay controversy, therefore, it

is a controversy between the City and union members which

arises under state law and which has a separate forum for

adjudication. That controversy is best resolved in the state

administrative proceedings where the parties with truly adverse

interests can advocate their respective positions.

Fourth, decision on the merits, even reversal of the district

court’s 1981 orders, would not provide the union members

with back pay. The power of a federal court “only extends

over and is limited by the conditions of the case now before

{it}, Oil Workers Union v. Missouri, 361 U.S. 363, 370

(1960), quoting American Book Co. v. Kansas, 193 U.S. 49,

52 (1904), and there simply are no claims for back pay pending

before the federal court. Compare Alejandrino v. Quezon, 271

U.S. 528, 533-535 (1926) with Powell v. McCormack, 395

U.S. 486, 497-499 (1969). Accordingly, any decision by this

Court would be advisory at best.

14

Conclusion.

For the foregoing reasons, the petitions for writs of certiorari

should be denied.

Respectfully submitted,

JAMES S. DITTMAR*,

Sixty State Street,

Boston, Massachusetts 02109.

(617) 227-7200

BARBARA R. ARNWINE,

LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS UNDER LAW OF THE

BOSTON BAR ASSOCIATION,

294 Washington Street,

Boston, Massachusetts 02108.

(617) 482-1145

Counsel for Respondents

*Counsel of Record

Of Counsel:

RICHARD R. LAVIN,

MATTHEW D. BAXTER,

WIDETT, SLATER & GOLDMAN, P.C.,

Sixty State Street,

Boston, Massachusetts 02109.

(617) 227-7200

la

Appendix.

MASSACHUSETTS GENERAL LAWS.

Chapter 31, § 43.

If a person aggrieved by a decision of an appointing authority

made pursuant to section forty-one shall, within ten days after

receiving written notice of such decision, so requests in writing

to the commission, he shall be given a hearing before a member

of the commission or some disinterested person designated by

the chairman of the commission. Said hearing shall be com-

menced in not less than three nor more than ten days after the

filing of such request and shall be completed within thirty days

after such filing unless, in either case, both parties shall other-

wise agree in a writing filed with the commission, or unless

the member or hearing officer determines, in his discretion,

that a continuance is necessary or advisable. Upon completion

of the hearing, the member or hearing officer shall file forthwith

a report of his findings with the commission. Within thirty

days after the filing of such report, the commission shall render

a written decision and send notice thereof to all parties con-

cerned.

The commission shall affirm the action of the appointing

authority if it finds that such action is justified. Otherwise it

shall reverse such action, and the person concerned shall be

returned to his position without loss of compensation or other

rights. The commission may also modify any penalty imposed

by the appointing authority.

Any hearing pursuant to this section shall be public if either

party so requests in writing. The person who requested the

hearing shall be allowed to answer, personally or by counsel,

any of the charges which have been made against him.

The decision of the commission made pursuant to this section

shall be subject to judicial review as provided in section forty-

four.

2a

Saturdays, Sundays and legal holidays shall not be counted

in the computation of any period of time specified in this

section.