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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 1075

## Text

OO

“Supreme Court, Ud
FILED
sss. 84-1393, 84-1430. apa 8 1985
In the

ALEXANDER L. STEWASs

Supreme Court of the United Statess—

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,
V

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. DitTTMaAR*,
Sixty State Street,
Boston, Massachusetts 02109.

(617) 227-7200
Of Counsel: BARBARA R. ARNWINE,
RICHARD R. LAVIN, LAWYERS’ COMMITTEE FOR CIVIL
MATTHEW D. BAXTER, RiGHTS UNDER LAW OF THE
WipETT, SLATER & GOLDMAN, P.C., BOSTON Bar AssociaTion,
Sixty State Street, 294 Washington Street,
Boston, Massachusetts 02109. Boston, Massachusetts 02108.
(617) 227-7200 (617) 482-1145
Counsel for Respondents
*Counsel of Record

BATEMAN & SLADE. INC

BOSTON. MASSACHUSETTS

~ BEST AVAILABLE COPY |

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.

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
I. The Court of Appeals’ Mootness Decision Does
Not Present a Substantial Federal Question
Il. The Petitions Rely Upon Matters of Fact Not in
the Record and Involve Undecided Issues of State
Law
lil. The Court of Appeals Correctly Determined that
These Cases are Moot
Conclusion
Appendix

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Table of Authorities Cited.
CASES.

Alejandiino 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 v. 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)

Mt hh WN NN —

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13
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passim

il TABLE OF AUTHORITIES CITED.

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

McPherson, et al. v. City of Boston Fire Department,
Appointing Authority, Massachusetts Civil Service
Commission, Appeal No. D-1280 (November 28,
1983)

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

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

Town of Stow v. Marinelli, 352 Mass. 738, 227 N.E.2d
708 (1967)

United States v. United Mine Workers of America, 330
U.S. 258 (1947)

W.R. Grace and Co. v. Local Union 759, 461 U.S. 757
(1983)

STATUTES.

United States Constitution
Art. Il, § 2, cl. |

Massachusetts General Laws
ce; 3,9 32
c. 31, § 43

1982 Massachusetts Acts

c. 190, § 25 z

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i)

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,
v.
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 (Ist 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.
Biack and Hispanic police officers and firefighters challenged
the layoff program by appiying to the district court for modifi-
cation of prior court orders in order to prevent the City from
reducing their proportional representation beiow the levels ob-
taining at the time the program commenced.

The minority officers’ requests for moditication 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. RB ston
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 appeais 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 remova! 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, 19°! orders and remanded the cases to the

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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 remand,
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) (“Srotts”’). 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 layotfs. 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 Stotts 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 Stotts.

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 Srotts 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 (1st Cir. 1984).

Upon careful consideration, it was evident to the court of
appeals that these cases “differjed] 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 ,ajunction.
In these cases, however. “the parties agree that there is no
seniority problem or issue.” /d. Second, unlike in Srotts, 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 “[s|ince 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 soleiy 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.

1. THe Court OF APPEALS’ MOOTNESS DECISION Does 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 permissible impact, at a time of layoffs. on
bona fide seniority systems. Subsequently, however, the Court
has answered that question in Srotts. 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 alone.

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 Srotts 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 Firetighters’ 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 shouid
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 « 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 who 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 union, 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, distinci 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. vy. 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 similarly have no
bearing on resolution of any back pay claim under state law.

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.

Il. THE COURT OF APPEALS CORRECTLY DETERMINED THAT
THESE CASES ARE Moor.

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 Stotts 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 Srotts,
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 Stotts, 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 198]
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 Stotts restrained the City
of Memphis from granting back pay to the laid-off firefighters,
and for that reason the City sought appellate review. Stotts,
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
fit}.” 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.

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