Emanual Brandao was sworn in as a full-time police officer of the Boston Police Department in June 2017. In February 2019, he was placed on administrative leave pending investigation of allegations of misconduct, and on March 28, 2019, he was discharged for failing to properly secure his department-issued firearm while off duty. Generally, tenured civil service employees are entitled to written notice and a hearing before termination; Brandao did not receive this pretermination process, and the dispute centered on whether he had attained tenured status at the time of his termination. To attain tenured status, a newly appointed police officer must “actually perform the duties of the position on a full-time basis for a probationary period of 12 months, except as otherwise provided by civil service rule.”
If not for other factors, Brandao would have completed the necessary 12 months of active-duty police work to attain tenured status in June 2018. However, when placed on administrative leave in February 2019, he had only accumulated approximately 200 days of such work due to two military leaves of absence: from October 5, 2017, to November 14, 2017, and from January 8, 2018, to December 27, 2018. The Department did not credit Brandao with time toward his probationary period during these leaves, and thus did not consider him a tenured employee at the time of his termination.
Brandao then filed a complaint with the Civil Service Commission, contending that the Department had failed to provide him with written notice of the extension of his probationary period. While the Department did not provide written notice after each leave of absence, it provided Brandao with a copy of the Boston Police Academy Rules and Procedures, which stated that the statutory probationary period would exclude “time spent on light duty, worker’s compensation, injured on duty leave, sick time, leaves of absence, and administrative leave, or suspension.” The Commission dismissed Brandao’s complaint. Brandao initiated proceedings in the Superior Court for judicial review of the Commission’s decision. The judge upheld the Commission’s decision and granted the Department’s cross motion for judgment on the pleadings.
The Appeals Court of Massachusetts affirmed the ruling of the lower court: “We conclude that Par. 12(2) is unambiguous. Therefore, we need not look further than its express terms, which must be given their plain and ordinary meaning. Brandao claims that the second half of the rule, which establishes the obligation to provide written notice, operates as a condition precedent to the first half of the rule, which provides for the extension of the probationary period. Contrary to Brandao’s assertion, the second half of the rule is not preceded by conditional language such as ‘if’ or ‘so long as.’ Nor does the rule specify that the consequence of a failure to provide written notice would be to credit the days of absence towards the employee’s statutory probationary period. Brandao’s interpretation not only lacks textual support but actually reverses the conditional relationship of the two halves of Par. 12(2).”
The Court noted an argument that Brandao made, which ran counter to the purpose of Section 61, stating that the judge recognized that “the manifest purpose of the statutory probationary period is that the fitness of an appointee be actually demonstrated by service within a probationary period.” The policy behind this statute is to “ensure sufficient time for a careful determination whether they are present in sufficient degree, and that this, of course, could not occur if an officer was credited with time during which he was not actually performing the duties of a police officer.”
The Court further stated that the Department provided written notice in compliance with Par. 12(2). Brandao had argued that because Par. 12(2) requires written notice of “such extension,” and the actual number of days of absence can only be known after the employee’s absence has concluded, the written notice must necessarily (1) be provided post absence; and (2) numerically express the number of days of the extension. The Court determined that this interpretation lacked support.
The Department provided a copy of the Department rules, stating that statutory probation would not include time spent on leaves of absence. The Court felt that the Department rules communicated that (1) a leave of absence would trigger an extension of the probationary period; and (2) the duration of the extension would be equal to the duration of the leave of absence. Because Brandao knew each leave of absence would trigger an extension, and that the duration of each extension would be equal to the duration of each leave of absence, he had sufficient information regarding the extension.
Brandao v. Boston Police Department, 105 Mass. App. Ct. 187 (2025).