The Commission's decision

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COMMONWEALTH OF MASSACHUSETTS 
SUFFOLK, ss. CIVIL SERVICE COMMISSION 
One Ashburton Place - Room 503 
Boston, MA 02108 
(617) 727-2293 
FRANK A. TRANFAGLIA, 
Appellant 
v. D1-14-83 
TOWN OF WINTHROP, 
Respondent 
Appearance for Appellant: Thomas J. McCarthy, Esq. 
McCarthy Law Offices 
15 Sea View Avenue 
East Boston, MA 02128 
Appearance for Respondent: Howard L. Greenspan, Esq. 
200 Broadway, Suite 304 
Lynnfield, MA 01940 
Commissioner: Cynthia A. Ittleman, Esq. 1 
DECISION ON RESPONDENT’S MOTION TO DISMISS 
On March 31, 2014, pursuant to G.L. c. 31, § 42, the Appellant, Frank A. Tranfaglia
(“Mr. Tranfaglia” or “Appellant”), filed this appeal with the Civil Service Commission
(“Commission”) contesting the decision of the Town of Winthrop (“Town”) to terminate him
from his position as a permanent reserve police officer. A pre-hearing conference was held on
April 22, 2014 at the offices of the Commission, which was attended by Mr. Tranfaglia, his
counsel, and counsel for the Town. 
On April 22, 2014, pursuant to 801CMR §1.01(7)(g), the Town submitted a Motion to
Dismiss (“Motion”), arguing that the Commission has no jurisdiction to hear the appeal because,
according to the Town, Mr. Tranfaglia is not a tenured civil service employee. On April 29,
2014, the Respondent submitted a Memorandum of Law in support of its Motion to Dismiss 
1 The Commission acknowledges the assistance of Law Clerk Todd M. Hirsch in the drafting of this decision. 
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(“Memorandum”). On May 8, 2014, Appellant filed an Opposition to Respondent’s Motion
(“Opposition”). A hearing on the Respondent’s Motion to Dismiss was held on August 28, 2014
at the offices of the Commission. 2 The hearing was digitally recorded and both parties were
provided with a CD of the hearing. 3 
Findings of Fact 
Based on Motion, Memorandum, Opposition, the documents produced by the parties before and
after the hearing, 4 the stipulations of the parties, the parties’ arguments, and taking administrative
notice of all matters filed in the case and pertinent statutes, case law, regulations and policies, the
following is undisputed: 
1. On May 7, 2012, the Appellant filed a completed employment application with the Town
of Winthrop Police Department. (Appellant’s Opposition) 
2. On July 19, 2012, the Town of Winthrop sent the Appellant a conditional offer of
employment. (Appellant’s Opposition) 
3. On November 5, 2012, the Town of Winthrop Police Department sent a letter to the
Appellant notifying him that he would be appointed as a Reserve Police Officer.
(Appellant’s Opposition) 
4. Appellant was sworn in as a Reserve Police Officer in the Town of Winthrop on
November 15, 2012. (Appellant’s Opposition) 
5. After being sworn in, the Appellant completed training at the Massachusetts Law
Enforcement Training Alliance Reserve/Intermittent Recruit Officer Course. The 
2 The Standard Adjudicatory Rules of Practice and Procedure, 801 CMR §§ 1.00, et seq. , apply to adjudications
before the Commission with G.L. Chapter 31, or any Commission rules, taking precedence. 
3 If there is a judicial appeal of this decision, the plaintiff in the judicial appeal would be obligated to supply the
court with a transcript of this hearing to the extent that he/she wishes to challenge the decision as unsupported by the
substantial evidence, arbitrary and capricious, or an abuse of discretion. 
4 The parties produced documents post-hearing in response to my request at the hearing . 
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Appellant graduated on May 4, 2013. There was no swearing in ceremony following the
completion of this course of study. Rather, he was sworn in prior to training.
(Appellant’s Opposition) 
6. The Appellant’s first shift for the Town of Winthrop as a Reserve Police Officer was on
September 9, 2013, which was several months after his initial six month probationary
period. (Appellant’s Opposition; Affidavit of Chief Terence M. Delehanty;
Administrative Notice) 
7. Between September 9, 2013 and March 26, 2014, the Appellant worked twelve (12) shifts
for the Town of Winthrop Police Department, which amounted to 93 hours. The last shift
he worked there was on December 1, 2013. (Administrative Notice) 
8. The Appellant was supervised by Officer Feeley and Officer Freeman. An evaluation of
the Appellant’s performance was completed after each one of the twelve (12) shifts. On
September 22, 2013, the Appellant’s third shift, Officer Freeman wrote that Officer
Tranfaglia’s “tunnel vision causes him to miss things.” On October 27, 2013, the
Appellant’s ninth shift, Officer Feeley wrote that Officer Tranfaglia “still has no idea
where many of the streets in Winthrop are and ends up driving to incorrect streets.” On
November 9, 2013, the Appellant’s tenth shift, Officer Freeman wrote that Officer
Tranfaglia “continues to make the same mistakes that he did on day 1.” (Administrative
Notice) 
9. The Appellant was terminated on March 26, 2014. (Appellant’s Opposition; Affidavit of
Chief Terence M. Delehanty) 
10. Prior to the Appellant’s appointment to the position of Winthrop Reserve Police Officer,
the Appellant graduated from the Boston Special Police Academy on May 3, 2012. The 
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Appellant was contracted as a Special Police Officer for the City of Boston on May 29,
2012. (Appellant’s Opposition) 
11. After his termination from the Winthrop Police Department, the Appellant filed the
instant appeal. 
DISCUSSION 
Legal Standard for Motion to Dismiss 
The United State Supreme Court has held that in order to survive a motion to dismiss, the
non-moving party must plead only enough facts to state a claim to relief that is plausible on its
face. See Bell Atlantic corp. v. Twombly, 550 U.S. 544, 547 (2007). Thus, the non-moving
party must plead enough factors to raise a reasonable expectation that discovery will reveal
evidence in support of the allegations. See id. at 545. Similarly, the Massachusetts Supreme
Judicial Court has held that an adjudicator cannot grant a motion to dismiss if the non-moving
party’s factual allegations are enough to raise a right to relief above the speculative level based
on the assumption that all of the allegations in the appeal are true, even if doubtful in fact. See
Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). 
The Standard Adjudicatory Rules of Practice and Procedure (“Rules”) govern
administrative adjudication where applicable. 810 CMR 1.01, et seq . The Commission adopted
the Rules in 1999. Pursuant to 801 CMR 1.01(7)(g)(3), the Commission may dismiss an appeal
for lack of jurisdiction or, in the event the appeal fails to state a claim upon which relief can be
granted. Id. Such motions are decided under the well-recognized standards for summary
disposition as a matter of law, which state, “viewing the evidence in the light most favorable to
the non-moving party,” the undisputed material facts affirmatively demonstrate that the non-
moving party has “no reasonable expectation” of prevailing on at least one “essential element of 
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the case.” See e.g., Milliken & Co. v. Duro Textiles LLC, 451 Mass. 547, 550 (2008);
Maimonides Sch. v. Coles, 71 Mass. App. Ct. 240, 249 (2008); Lydon v. Mass. Parole Bd., 18
MCSR 216 (2005). 
Applicable Civil Service Law and Related Statutes 
The Commission’s jurisdiction to hear disciplinary appeals is defined by statute. Pursuant
to G.L. c. 31, § 41, an employer may not impose certain types of discipline, including discharge,
upon a “tenured employee” without “just cause.” G.L. c. 31, § 41. 
G. L. c. 31, § 1 defines a “tenured employee” as a person “who is employed following an
original appointment to a position … and the actual performance of the duties of such position
for the probationary period required by law.” The probationary period applicable to persons,
such as the Appellant, appointed to the position of police reserve officer, is prescribed by G.L. c.
31, § 34, which states in relevant part: 
Following his original appointment as a permanent employee to a less than full-time civil
service position, including a reserve, intermittent, call, recurrent, or part-time position, a
person shall serve a probationary period of six months immediately following such
appointment, which shall include the actual performance of the duties of such position for
not less than thirty working days or the equivalent thereof during such period, before he
shall be considered a less than full-time tenured employee, provided that if such person
has not performed such duties for such thirty working days or the equivalent thereof, his
probationary period shall be extended for an additional twelve months, at the end of
which time such person, if his employment has not been terminated in accordance with
the provisions of this section, shall be deemed to be a tenured employee. 
(Id.) 
G.L. c. 41, § 96B states in relevant part: “Each person appointed as a reserve, or intermittent
police officer, in a city or town shall, prior to exercising police powers, satisfactorily complete a
course of study prescribed by said committee.” Id. 
The Commission only has jurisdiction to hear disciplinary appeals of tenured employees.
See Selectmen of Brookline v. Smith, 58 Mass.App.Ct. 813, 815 (2003). This is clear from the 
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structure and content of the civil service laws, which “provide an administrative hearing for
tenured employees, G.L. c. 31, § 41, but not for probationary employees.” New Bedford v. Civil
Service Comm’n., 6 Mass.App.Ct. 549, 551 (1978). A tenured employee may have further rights
under G.L. c. 31, §§ 41-45, including the right of appeal to the Commission. However, if a
person is a probationary employee when his employment is terminated, the Commission lacks
jurisdiction over the appeal. See Brouillard v. City of Holyoke, 74 Mass.App.Ct. 1128 (2009). 
Parties’ Arguments 
The Appellant avers that the Commission has jurisdiction to hear his appeal. Although he
does not dispute that he was sworn in on November 15, 2012, that his first shift assignment was
on September 9, 2013, and that he worked twelve (12) shifts, the Appellant argues that his time
in training qualifies as the actual performance of police duties, and, therefore, it should be
counted as the performance of police duties pursuant to G.L. c. 31, § 34. Furthermore, the
Appellant argues that because he had already completed training at the Boston Special Police
Academy, he was qualified to perform actual police duties before completing training in
Winthrop. As a result, the Appellant argues that in the six-month period from November 15,
2012 to May 15, 2013, he performed police duties for the requisite thirty days. Thus, he believes
that his probationary period should not have been extended for an additional twelve-months
because he was already a tenured employee by May 15, 2013. Thus, the Appellant argues that he
was a tenured police officer by the time of his termination in March 2014, requiring the
Respondent to have conducted a hearing before terminating his employment and providing the
Commission with jurisdiction to hear his appeal. 
The Respondent argues that the Appellant was a probationary employee at the time of his
termination and, thus, it was authorized to terminate his employment and the Commission has no 
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jurisdiction to hear this appeal. It is the Respondent’s contention that the Appellant’s time spent
in training should not be counted toward the satisfaction of the necessary probationary period
because time in training is time spent learning, not performing the actual duties of a police
officer. Therefore, the Respondent argues that in the six months after being sworn in, the
Appellant worked only twelve (12) shifts, falling short of the requisite thirty days. Thus, the
Respondent avers that the total probationary period was extended by twelve months, per G.L. c.
31, § 34, from November 15, 2012 to May 15, 2014. In this way, the Respondent argues that the
Appellant was terminated at a point in time while he was still serving the probationary period
and he has no right to appeal here. 
Analysis 
The Appellant was within the probationary period of employment at the time of his
termination and, therefore, the Commission lacks jurisdiction to hear this appeal pursuant to G.L.
c. 31, §§ 41-45. Pursuant to G.L. c. 41, § 96B, an officer is required to complete training “prior
to exercising police powers.” Id. Further, the Appellant’s time in training is not counted toward
completion of the probationary period because training does not constitute the actual
performance of the duties of a reserve police officer, as required by G.L. c. 31, § 34. See
Selectmen of Brookline v. Smith, 58 Mass.App.Ct. 813 (2003) (holding that training at the
Academy was not part of the actual duties of a police officer). Officers in training are learning
how to perform their duties but they are not actually performing them. In other words, the
probation period does not begin until student officers complete the obligatory training and begin
working. 
As a Reserve Police Officer, the Appellant’s probationary period ran from the date of his
swearing in ceremony on November 15, 2012 until May 15, 2013, a period of six months, 
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pursuant to G.L. c. 31, § 34. However, the Appellant did not perform the actual duties of a
police officer during this period. Since he did not perform the duties of a police officer for thirty
(30) working days within the six (6) month period, the Appellant’s probationary period was
extended by twelve (12) months, for a total probationary period of eighteen (18) months,
pursuant to G.L. c. 31, § 34, ending November 15, 2012 until May 15, 2014. It was during this
extended probationary period that the Appellant worked twelve (12) shifts. The long duration of
the probationary period is required to ensure that a part-time officer is capable of performing the
duties that are required of a police officer. Police Commr. of Boston v. Cecil, 431 Mass. 410,
414 (2000)(finding that applicant must possess “courage, good judgment, and the ability to work
under stress in the public interest.”) 
A student officer cannot exercise police powers and, thereby, actually perform the duties
of a police officer until she or he graduates from training. Selectmen of Brookline v. Smith, 58
Mass.App.Ct. 813, 815 (2003). The Appellant relies on Smith to argue that he should have been
sworn in after he completed training stead of being sworn in prior to training so that his
probationary period was unduly extended. The facts in Smith are distinguishable from the facts
of the instant case because in Smith, the officer was sworn in after completing his training. Here,
the Appellant was sworn in before his training commenced. However, the Town was not required
to swear the Appellant in after he was trained. Further, even if the Appellant was sworn in after
he graduated from training on May 4, 2013, he still did not perform actual police duties for the
requisite thirty working days in the six month period that followed. Therefore, the Appellant’s
interpretation of Smith is without merit. 
It remains clear, in view of the applicable statutes, that training does not count toward the
actual performance of police duties. The Commission has confirmed the applicable statutes, 
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holding that before the “actual performance” of police duties can commence, an officer must
both (1) successfully graduate from the academy and (2) be sworn in. See Patterson v. Town of
Plymouth, 21 MCSR 650 (2008). For this reason, the Appellant could not perform the actual
duties of a Reserve Police Officer until after he graduated from the Massachusetts Law
Enforcement Training Alliance Reserve/Intermittent Recruit Officer Course on May 4, 2013.
Furthermore, the Appellant’s graduation from the Boston Special Police Academy is irrelevant to
his abilities to perform the functions of a reserve police officer in Winthrop. 
The Appellant has failed to plead sufficient facts to state a claim for relief that is
plausible on its face or above the speculative level, even assuming that his allegations are true, in
view of the clear applicable statutes and case law. The Appellant was terminated on March 26,
2014 while he was still a probationary Reserve Police Officer, not a tenured civil service
employee, and that his probationary period did not end until May 15, 2014. His initial six (6)
month probationary period was properly extended by twelve months because he did not actually
perform the duties of a reserve police officer for thirty days during his initial six-month
probationary period, as required by statute. Having been terminated during his probationary
period, the Appellant does not have the rights of a tenured civil service employee under G.L. c.
31, §§ 41-45, such that the Commission has no jurisdiction to hear this appeal. 
Conclusion 
For the foregoing reasons, the Respondent’s Motion is hereby granted and the
Appellant’s appeal is hereby denied . 
Civil Service Commission 
/s/ Cynthia A. Ittleman 
Cynthia A. Ittleman 
Commissioner 
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By a vote of the Civil Service Commission (Bowman, Chairman; Ittleman, McDowell, and Stein,
Commissioners) on August 6, 2015. 
Either party may file a motion for reconsideration within ten days of the receipt of this Commission order or
decision. Under the pertinent provisions of the Code of Mass. Regulations, 801 CMR 1.01(7)(l), the motion must
identify a clerical or mechanical error in this order or decision or a significant factor the Agency or the Presiding
Officer may have overlooked in deciding the case. A motion for reconsideration does not toll the statutorily
prescribed thirty-day time limit for seeking judicial review of this Commission order or decision. 
Under the provisions of G.L c. 31, § 44, any party aggrieved by this Commission order or decision may initiate
proceedings for judicial review under G.L. c. 30A, § 14 in the superior court within thirty (30) days after receipt of
this order or decision. Commencement of such proceeding shall not, unless specifically ordered by the court, operate
as a stay of this Commission order or decision. After initiating proceedings for judicial review in Superior Court,
the plaintiff, or his / her attorney, is required to serve a copy of the summons and complaint upon the Boston office
of the Attorney General of the Commonwealth, with a copy to the Civil Service Commission, in the time and in the
manner prescribed by Mass. R. Civ. P. 4(d). 
Notice to: 
Thomas J. McCarthy, Esq (for Appellant) 
Howard L. Greenspan, Esq. (for Respondent)