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Decision

Decision  Leeper, Mark v. Department of Correction 12/18/25

Date: 12/18/2025
Organization: Civil Service Commission
Docket Number: D-24R-146
  • Appearance for Appellant: Patricia DeJuneas, Esq.
  • Appearance for Respondent: Eamonn Sullivan, Esq.
  • Hearing Officer: Joseph A. Markey

In light of protections afforded by the Massachusetts whistleblower statute, the Commission overturned the decision of the Department of Correction to suspend the Appellant, a lieutenant, for one day due to alleged violations of the agency’s data security policy.  Issuance of a written reprimand for breach of confidentiality remains within the agency’s prerogative, however.

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Decision

The Appellant, Mark P. Leeper, acting pursuant to G.L. c. 31, § 43, appealed to the Civil Service Commission (Commission) challenging the decision of the Department of Correction (DOC) to suspend him for one day from his tenured position of Correction Officer III (Lieutenant).  A pre-hearing conference was held on January 7, 2025, and I conducted a full evidentiary hearing in Boston on April 9, 2025.  I recorded the evidentiary hearing proceedings via the Webex platform and forwarded a link to both parties.  The parties filed post-hearing briefs in late June 2025.  For the reasons stated below, the appeal is allowed insofar as the one-day unpaid suspension, being inconsistent with whistleblower law, is ordered vacated.

The following witnesses testified on April 9, 2025.

Called by DOC:

  • Scott Smith, Chief of DOC’s Professional Standards Unit (“PSU”)
  • Michael Rodrigues, Assistant Deputy Commissioner of the Southern Sector

Called by the Appellant:

  • Lt. Samuel Carver
  • Lt. Mark P. Leeper, Appellant

FINDINGS OF FACT

The Respondent (DOC) submitted 13 exhibits and the Appellant submitted 12 exhibits, all of which I accepted into the record.

Based on witness testimony, exhibits admitted in evidence, and reasonable inferences drawn therefrom, I find by a preponderance of the evidence the following:

  1. The Appellant has been employed by DOC for over 16 years and, at the time of the disciplinary action, held the rank of Correction Officer III (Lieutenant) at the Mass. Correctional Institution at Norfolk (MCI-Norfolk).  [Resp. Exhibit 5; Testimony of Leeper]
  2. The Appellant forwarded internal DOC documents to individuals outside the agency—namely, a state legislator and his staff policy advisor—without first confirming their authorization to receive such information.  [Resp. Exhibit 8; Resp. Exhibit 9]
  3. I credit the Appellant’s belief that he was acting in good faith in sharing pertinent information and his testimony that he did not intend to cause harm to DOC in doing so.  [Testimony of Leeper]
  4. The current dispute between the Appellant and DOC traces back at least to December of 2022, when the Appellant raised allegations of fraudulent conduct by the then Superintendent of MCI-Norfolk.   The Appellant then alleged that Superintendent N.A.[1] condoned payroll fraud when he directed subordinates to record an MCI-Norfolk Captain as being on vacation for a week in August of 2022 rather than having been suspended without pay for five days, as ordered by senior DOC officials.  In July 2023, DOC’s Professional Standards Unit (PSU) sustained the Appellant’s allegations, finding that N.A. had, in fact, engaged in misconduct (per an investigation that closed on or around July 12, 2023).  Despite this finding, N.A. was later promoted to a senior position at DOC headquarters.  [Resp. Exhibit 5]
  5. In February of 2023, the Appellant had been serving as a union steward.  As a Lieutenant, part of his duties included reviewing inmate classification and disciplinary data and recommending appropriate housing and programming.  [Resp. Exhibit 5]
  6. On February 27, 2023, the Appellant sent an email to a DOC PSU official complaining about certain sexual offenses perpetrated by two inmates (to wit: indecent exposure, openly masturbating, stalking directed at female staffers)—while the inmates were housed on his floor—as not having been reported by any senior DOC official to the District Attorney’s office for possible prosecution.[App. Exhibit 10]
  7. In March 2023, on the same day the Appellant filed safety violation grievances, Superintendent N.A. ordered an investigation into whether the Appellant had improperly accessed the Inmate Management System (IMS), resulting in Inquiry #20524. [Resp. Exhibit 5]
  8. The Appellant’s use of IMS tied into his regular Lieutenant duties; that is, he did not log into IMS solely to bolster grievances he was preparing.  The Appellant’s March 2023 grievances purported to be about “deliberate indifference towards staff safety”; specifically, he alleged that two sex offender inmates that his facility was obliged to house remained in unlocked units “soon after [they] victimized female therapists with sexually inappropriate behavior.”  He alleged that he received “no response to his concerns about the inmate housing assignments”— and it appears that his superiors in the agency never did notify the District Attorney’s office of the inmates’ alleged sex crimes. [Resp. Exhibit 5]
  9. The Appellant was never told that Inquiry #20524 had concluded with a finding adverse to him.  Later, when PSU opened Intake #20799 to examine a retaliation complaint that the Appellant had verbalized during an August 2023 PSU interview, investigators also began reviewing emails that the Appellant had sent earlier that summer to high-level DOC administrators and a prominent state senator, James Eldridge.  PSU did not notify the Appellant that he was under investigation and did not give him an opportunity to explain his actions, contrary to DOC policy 103-DOC-522.  [Resp. Exhibit 5]
  10. DOC requires all correction officers to be familiar with rules contained in the agency’s so-called “Blue Book” of regulations.  Rule 3 of the DOC’s “Blue Book” (entitled “Public Relations”) states in part:  “Any release of confidential information by an employee to unauthorized sources shall be considered cause for disciplinary action, including immediate dismissal or suspension.”  This regulation was in place in such terms throughout 2023.  [Resp. Exhibit 5; Resp. Exhibit 12]
  11. In the immediate wake of having been questioned by PSU in connection with the investigative inquiry launched by Superintendent N.A. (which the Appellant had referred to in a prior email to the head of PSU as an act of “potential retaliation”) the Appellant emailed state Senator James Eldridge about internal DOC investigations allegedly being biased, faulty, and “negligent”.[2] [Resp. Exhibit 8]  The Appellant copied (then) DOC Commissioner Carol Mici and the Executive Chief of DOC’s Investigative Services division, Forrest Ruddy, on this email to Senator Eldridge, dated June 7, 2023.  The email bore the subject line:  “Potential Retaliation for Reporting Misconduct, Possible Violation of Inmate [Rights]”.
  12. The Appellant corresponded via email with Senator Eldridge, the (then) co-Chair of the Legislature’s Joint Public Safety Committee, which has legislative oversight authority over conditions of confinement at MCI-Norfolk, because the Appellant viewed it as Senator Eldridge’s responsibility to advocate for remediation of health and safety problems within DOC prisons.  [Testimony of Leeper]
  13. The Appellant incorporated into the body of his email reduced-size screenshots of two pages (the “Executive Review and Comments” section) of an internal DOC investigative report into allegations of staff misconduct involving the transportation of an inmate to a Boston hospital for medical treatment.  The Appellant redacted the names of this inmate and certain DOC staff members involved but on certain lines of the scan failed to redact the DOC officer-in-charge’s name.  The Appellant asserted to Senator Eldridge that the investigation excerpt he incorporated “supports [his] assertion that [certain DOC investigations] have been lacking or negligent.” [3]  [Resp. Exhibit 8]  The Appellant identified by name a former DOC Deputy Commissioner for Field Services as “the individual most responsible for these faulty investigations.”  [Id.] The Appellant also identified the officer-in-charge (OIC) of the inmate transport as the nephew of another former DOC Deputy Commissioner.[4]  Seemingly drawing parallels to the situation he currently faced, the Appellant described the investigative report into this transport incident as reflecting “potential bias, lack of knowledge of Institutional procedures, or minimizing of serious misconduct.” [Id.]
  14. The Legislature’s Joint Rules show that the co-chairs of the Joint Public Safety Committee are entitled to receive security clearance from federal and state officials in order to be granted access to confidential information and materials.  The Joint Public Safety committee’s online mission statement includes the following: “It shall be the duty of the committee on Public Safety and Homeland Security to consider all matters concerning [inter alia] . . . the correction system including administration, prisoners’ rights, [etc.]”  In furtherance of this committee mandate, Senator Eldridge in 2022 had introduced a bill to increase oversight of the DOC.  The Appellant’s decision to email Senator Eldridge was influenced by this fact.  [App. Exhibit 5; Testimony of Leeper]
  15. On July 24, 2023, Senator Eldridge’s senior policy advisor wrote back thanking the Appellant for sharing “valuable details regarding DOC procedures that are highly concerning.”  [Resp. Exhibit 8]  Senator Eldridge’s staffer invited the Appellant to write back with an update on the status of his complaints to Chief Ruddy about DOC internal investigative processes.
  16. On August 4, 2023, the Appellant wrote back, copying Senator Eldridge.  He enclosed a copy of the letter he had received, as the original complainant against Superintendent N.A., from DOC’s Professional Standards Unit confirming that “the alleged misconduct was sustained against the staff involved.”  The Appellant characterized the misconduct involved as “falsifying state documents” and then “attempting to cover up the misconduct after my complaint.”  [App. Exhibit 8]  The Appellant then drew the Senator’s office’s attention to the lack of a response from Superintendent N.A. to “major security concerns that ultimately and unnecessarily led to two [female DOC] mental health workers being exposed to sex crimes”.  He attached supporting documentation.  [Id.]
  17. On August 23, 2023, during an interview with a PSU investigator, the Appellant verbally requested that DOC investigate possible retaliation from Superintendent N.A. [Resp. Exhibit 5]
  18. Even though the Appellant copied DOC agency heads, Commissioner Carol Mici, and Chief Ruddy on his June 7, 2023 email to Senator Eldridge, the Appellant was not asked then about that prior contact with Senator Eldridge during the interview PSU conducted with him on August 23, 2023. [Testimony of Carver]
  19. On September 4, 2023, the Appellant sent an email to the new head of PSU, Chief Scott Smith, in which he forwarded a July 20, 2023 email to his superior about voluminous unprotected (“minimally redacted”) investigative material available to unauthorized personnel on an unsecured shared [“Q:\”] computer drive.[5]  [Resp. Exhibit 13]  The Appellant described the material as “very sensitive information” that “should not be available outside of your office, DOC legal, and the [U.S.] Department of Justice.”  [Id.]  The Appellant commented:  “I worry about the wellbeing of staff if this information is distributed inappropriately.”  [Id.]  Although it does not form part of the record that DOC submitted to this Commission, it appears that the Appellant reproduced a portion of the sensitive Q:\ drive material “to demonstrate content available to [unauthorized] staff.”  [Id.]  The Appellant copied Senator Eldridge and his staff policy advisor on this September 4 email to Chief Smith.  [Id.]
  20. Claiming that no effective response to his July 20 and September 4 warnings had transpired, despite confirmation that some 26 to 30 mid-level DOC managers had unauthorized access to sensitive investigatory material, the Appellant again emailed Commissioner Mici and Senator Eldridge on September 28, 2023, regarding what he portrayed as “a major breach of confidentiality” concerning “managerial misconduct” within DOC.  [Id.]  The Appellant wrote:“As you can see in the attached screenshots [unauthorized] access [to highly confidential information on the Q:\ drive] as of September 28, 2023 still has not been removed.  I and other staff should not have access to these documents.  I should not know [that] a manager was involved in the wrongful death of an inmate and was less than truthful and was not terminated.” [Resp. Exhibit 9][6]  The screenshots (which appear to have been reduced in size by over 50%) reveal in tiny typeface the name and DOC commitment number of an inmate who died by suicide (“hanging”) and the name of a DOC Administrator who was being investigated for potential misconduct in connection with the death.  An unidentified but previously high-level DOC manager is quoted as sustaining the allegations of staff misconduct and deeming the subject of the investigation (the DOC Administrator) as having been “less than truthful when interviewed by the Internal Affairs Unit.”  [Resp. Exhibit 13]
  21. In his September 28, 2023 email, the Appellant also pointed to one conclusion from a recent Northeastern University Correction Officer Suicide Study stating that correction officers who committed suicide often were greatly affected by mental trauma and the pain occasioned by their co-workers finding out they had been under investigation for serious misconduct. [Resp. Exhibit 9; see also App. Exhibits 11 and 12]  The Appellant commented: “I only want to work in a safe environment and want my colleagues and those I am responsible for to remain healthy and safe.” [Resp. Exhibit 9]
  22. On October 18, 2023, Superintendent N.A. confirmed during a PSU investigative interview that the Appellant had communicated with him prior to filing grievances about the appropriate housing of sex offenders at MCI-Norfolk and that he had not responded to the Appellant’s emails. [Resp. Exhibit 5]
  23. On February 6, 2024, DOC informed the Appellant that the investigation into the retaliation claim against Superintendent N.A. had concluded and that DOC found no evidence that N.A. had retaliated against the Appellant.  However, DOC did find that the Appellant had violated DOC rules and regulations by sending confidential information to an unauthorized party (namely, Senator Eldridge and his chief aide).[Resp. Exhibit 5]
  24. In an accompanying investigative memorandum, the PSU charged the Appellant with three categories of misconduct:  (1) violation of general DOC standards of conduct; (2) violation of professional standards governing the correctional service; and (3) violation of the Executive Office of Technology Services and Security (EOTSS) policy, also known as the public relations/information security policy, for disseminating confidential DOC information to unauthorized third parties.[Resp. Exhibit 5]
  25. On August 22, 2024, Michael Rodrigues, DOC Assistant Deputy Commissioner, sent the Appellant a letter of suspension due to DOC finding him in violation of the DOC’s Rules and Regulations Governing all Employees of the Massachusetts Department of Corrections (“DOC Rules”).  [Resp. Exhibit 2]  Specifically cited in this letter were:  (1) the DOC Rules’ general policy provision requiring all DOC employees to “render good judgment” and refrain from “[i]mproper conduct”; (2) the “disciplined service” standard of Rule 1, which implies adherence to a chain-of-command structure; (3) Rule 3, containing the data confidentiality provision quoted in Finding no. 10, supra; and (4) the very similar provision in the EOTSS Acceptable Use of Information Technology Policy, section 6.2.2, which states in pertinent part:  “Do not send confidential information to any recipient not authorized to receive such information.”  [Id.]
  26. DOC mid-level managers such as the Appellant have never been given any specific training on the proper use of email, what data should preclusively be deemed confidential, or what specifically constitutes a violation of the bar on releasing confidential internal documents.  As chief union steward, Lt. Samuel Carver has never been advised that EOTSS’s policy applies directly to DOC staff members. [Testimony of Carver]
  27. PSU Chief Smith did not initiate an investigation upon receiving the Appellant’s September 4, 2023 email (on which Sen. Eldridge was copied), which contained what Smith now believes is confidential information.  Chief Smith concedes that sensitive and confidential investigation material should never have been uploaded (by a DOC law department staffer) to the shared Q:\ drive. [Testimony of Smith]
  28. Nonetheless, the Appellant did, in fact, forward portions of confidential DOC documents to two individuals outside the agency without first ascertaining for sure that either Senator Eldridge or his chief policy advisor were authorized to receive confidential internal DOC material. [Testimony of Leeper]
  29. The Appellant filed his appeal from DOC’s disciplinary action with the Commission on August 22, 2024.  [Resp. Exhibit 1]  After a dismissal nisi entered by the Commission on October 3, 2024, so that the Appellant could pursue an internal DOC disciplinary hearing, DOC reaffirmed its disciplinary action one week after an internal November 12 agency hearing. The Appellant again appealed to the Commission the confirmed discipline on December 5, 2024.  [Administrative notice of Commission records]

By law, a tenured employee may be disciplined only if “just cause” exists. G.L. c. 31, §§ 41–43.  The appointing authority bears the burden of proof by a preponderance of the evidence. This burden is met “if [misconduct mandating discipline] is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there.” Tucker v. Pearlstein, 334 Mass. 33, 35-36 (1956).

The Commission determines justification for discipline by inquiring “whether the employee has been guilty of substantial misconduct which adversely affects the public interest by impairing the efficiency of public service.” School Comm. v. Civil Service Comm’n, 43 Mass. App. Ct. 486, 488 (1997); Murray v. Second Dist. Ct., 389 Mass. 508, 514 (1983).  However, “[t]he commission’s task . . . is not to be accomplished on a wholly blank slate. After making its de novo findings of fact, the commission does not act without regard to the previous decision of the [appointing authority], but rather decides whether ‘there was reasonable justification for the action taken by the appointing authority in the circumstances found by the commission to have existed when the appointing authority made its decision’.” Falmouth v. Civil Service Comm’n, 447 Mass. 814, 823 (2006), quoting internally from Watertown v. Arria, 16 Mass. App. Ct. 331, 334 (1983) and cases cited. [7]

ANALYSIS

Because the Massachusetts whistleblower statute (G.L. c. 149, § 185) affords protection to public employees who disclose sensitive workplace information—relevant to unaddressed internal matters that pose a serious health or safety risk—to appropriate governmental bodies, just cause for disciplining the Appellant for having taken just such a step cannot be found here. Specifically, the Commission does not find on these facts that the Appellant violated DOC’s general standards of conduct; nor the professional standards of correctional service, including the “disciplined service” standard of Rule 1, which implies a duty to adhere to a chain-of-command structure; nor DOC’s Rule 3, the data confidentiality provision, or the very similar provision in the EOTSS Acceptable Use of Information Technology Policy, section 6.2.2.  Below I address the charge of violation of DOC’s general standards of conduct or professional standards of correctional service in light of my threshold determination that the Appellant’s correspondence with Senator Eldridge should be considered protected activity under the state whistleblower law.

To be sure, in this case I am not endeavoring to adjudicate a claim under the whistleblower act.  Rather, I am considering the Appellant's claim of whistleblower protection, under my best understanding of the whistleblower statute and case law construing that act, in connection with the discrete disciplinary appeal he has lodged here under G.L. c. 31, §§ 41-43.

The whistleblower statute expressly provides, in relevant part, as follows:

[Section 185] (b) An employer [defined in subsection (a) as including all state agencies] shall not take any retaliatory action [also defined in subsection (a), as quoted below in the margin[8]] against an employee because the employee does any of the following:

  1. Discloses . . . to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law, or which the employee reasonably believes poses a risk to public health, safety or the [work] environment;
  2. Provides information to . . . any public body conducting an . . . inquiry into any violation of law, or a rule or regulation promulgated pursuant to law, or activity, policy or practice which the employee reasonably believes poses a risk to public health, safety or the [work] environment[;] . . . .

(c) [But e]xcept as provided in paragraph [(c]] (2), the protection against retaliatory action . . . shall not apply to an employee who makes a disclosure to a public body unless the employee has brought the [improper or risky] activity, policy or practice . . . to the attention of a supervisor of the employee by written notice and has afforded the employer . . . a reasonable opportunity to correct the activity, policy or practice.[9]

G.L. c. 149, § 185 (emphases added).

As outlined by the Massachusetts Appeals Court (and reaffirmed by the Supreme Judicial Court):  “The elements of a whistleblower claim under G. L. c. 149, § 185, are that (1) the plaintiff employee engaged in an activity protected by the act; (2) the protected activity was the cause of an adverse employment action, such that the employment action was retaliatory; and (3) the retaliatory action caused the plaintiff damages.” Cristo v. Worcester County Sheriff's Office, 98 Mass. App. Ct. 372, 376 (2020), as quoted in Edwards v. Commonwealth, 488 Mass. 555, 568-69 (2021). 

In view of this statute’s express inclusion of a “suspension” in its definition of “retaliatory action,” and the fact that the suspension that DOC meted out deprived the Appellant of a day’s pay, the second and third elements necessary for whistleblower protection, as identified by the Christo court, appear to be satisfied here.  I will now focus further on the first element (engagement in protected external communication).

The Appellant alerted DOC superiors to certain internal policy violations and, arguably, salient “activity . . . or practice” violations impinging on the health and safety of inmates and staff, well in advance of contacting Senator Eldridge and his chief aide.  After the Appellant sent an internal email to the Department’s professional standards unit and an MCI-Norfolk superior officer complaining about a lack of repercussions in the wake of certain flagrant sexual offenses perpetrated by two inmates, DOC’s PSU not only failed to respond to the Appellant’s complaint but instead accepted the request of Superintendent N.A. to open an investigation into the Appellant’s utilization of the computerized inmate management system.  The Appellant was unaware of this initial inquiry against him for weeks and never learned of its disposition until the Commission hearing over two years later.  At no point was the Appellant given the opportunity to address Superintendent N.A.’s charge against him, which in itself was a violation of DOC policy (103-DOC-522).

The Appellant’s initial contact with Senator Eldridge, whom DOC deems a nonauthorized recipient of internal information, was an act intended to bring attention to deleterious matters affecting the health or safety of inmates and his coworkers, or the security of his work environment, that his immediate superiors had ignored.  DOC had the opportunity to address the Appellant’s concerns and, admittedly, did not investigate them prior to the Appellant disseminating information to this senior legislator.  Receiving no assurance that DOC would address his concern, the Appellant decided to contact the senior member of the Legislature’s oversight committee, Senator Eldridge, in the hope that escalating the matter would restore a sense of safety within his workplace. 

The Appellant’s detailed disclosure to Senator Eldridge of certain conditions and activities that threatened the security of the correctional facility in which he worked were almost certainly protected under G. L. c. 149, § 185.[10]  Moreover, the timing and nature of DOC’s decision to suspend the Appellant, as opposed to solely issuing a reprimand or warning, assume an unequivocally retaliatory character under this statute.[11] A punishment that exceeds what is permissible under law signals retaliation, and, as the Commission warned in Aiello v. City of Gloucester, “excessive punishment for sending [an] email might chill the legitimate rights of union representatives to speak freely.” Aiello v. City of Gloucester, 36 MCSR 454 (2023).

Although DOC argues that the Appellant sent information to an unauthorized party, the Appellant’s decision to contact Senator Eldridge was not uninformed or necessarily misguided.  Senator Eldridge’s position as the senior Co-Chair of the Joint Public Safety Committee entitled him to receive security clearance from federal and state officials for the very purpose of accessing confidential agency information. While DOC also contests the propriety of the dissemination of the confidential information the Appellant shared with the senator’s chief policy advisor, the Appellant demonstrated at hearing that his whistleblower actions were undertaken in good faith.

The Appellant’s decision to email the new head of PSU, Chief Scott Smith, is further evidence of an underlying sincere motivation to address issues of workplace security.  After having first alerted a supervisor to serious problems that could arise from highly confidential information being readily accessible to numerous mid-level managers, the Appellant again shared his concerns in a September 4, 2023 email to Chief Smith about how the potential broad dissemination of sensitive personnel information could affect the wellbeing of staff.  Because the Appellant copied Senator Eldridge on this email, this was yet another opportunity for those responsible for maintaining DOC professional standards to confront the Appellant about possibly improper external communications, but no action was taken for at least another six weeks.  In the meantime, the Appellant’s September 28, 2023 email to Senator Eldridge and Commissioner Mici regarding mid-level DOC managers having unauthorized access to highly sensitive material constituted a legitimate attempt by the Appellant to resolve what was at that point a serious ongoing, lingering security issue within DOC.  Superintendent N.A.’s concession that he did nothing to follow up on the Appellant’s earlier grievance concerning a lax response to sex offenses being perpetrated in view of female staffers on his unit; the fact that the Appellant informed Deputy McDonald on July 21, 2023 that highly sensitive and confidential material had been erroneously uploaded to the shared Q:\ drive and McDonald took no steps to remedy that problem; and the inaction of Chief Smith following the Appellant notifying him on September 4, 2023 of that same security breach all strengthen the Appellant’s argument that he had a good faith basis to inform other appropriate government officials outside of his employing agency of the DOC’s inaction concerning his serious complaints.

The first time that DOC addressed the Appellant directly about emailing Senator Eldridge was when they sought to punish him for it over four months later.  In the February 6, 2024, letter informing the Appellant that his request to investigate Superintendent N.A.’s potential retaliation against him was being declined, DOC also informed the Appellant that he was being charged with violating DOC policies.  The Appellant’s request for an investigation into Superintendent N.A. was originally precipitated by the superintendent having condoned payroll fraud (clearly a violation of law)—which, after investigation, led DOC to sustain misconduct allegations against the superintendent.  Superintendent N.A.’s investigation request and his disregard of the Appellant’s prior complaint about sex offenses being committed on his floor (another violation of law) indicate at best a lack of concern for the valid issues the Appellant raised. 

In sum, notwithstanding DOC’s assertion that the Appellant’s emails to Senator Eldridge constituted unauthorized correspondence, the Appellant’s communications were generally protected and motivated by a sincere desire to seek redress of legitimate workplace problems.  Although it is not necessary for the Commission to conclude whether or not the Appellant has a viable whistleblower act claim, it is clear that the “just cause” test for imposing an unpaid suspension—i.e., the tenured public employee must be guilty of “substantial misconduct which adversely affects the public interest by impairing the efficiency of the public service”[12]—has not been met in this case.  Especially given that the Appellant acted in good faith with sincere motive to improve, not impair, the public interest, one could conclude that his actions were not opprobrious but rather within the spirit of (and quite likely within the letter of) G. L. c. 149, § 185.  At most, the Appellant’s failure to redact the names of some of the involved parties (in one instance to which he had access solely due to the breach of confidentiality of other DOC personnel) is more of an oversight than misconduct.  Because I find that, in these particular circumstances, whistleblower act protections eclipse DOC’s Rule 3 regarding data confidentiality, the one-day suspension imposed by the Respondent is invalid.

I turn now briefly to other justifications that DOC offered for its suspension decision:  (1) that the Appellant violated DOC Rules’ general policy provision requiring all DOC employees to “render good judgment”; and alleged violations of:  (2) the “disciplined service” standard of Rule 1, which implies adherence to a chain-of-command structure; and (3) section 6.2.2 of the EOTSS Acceptable Use of Information Technology Policy, which states in pertinent part: “Do not send confidential information to any recipient not authorized to receive such information.”

Addressing the “disciplined service” standard of Rule 1, I find that the Appellant did adhere to the chain-of-command structure when he made efforts to inform his superiors of unsafe working conditions.  Therefore, he did not violate this standard.  Next, for the same reasons, explicated above, that a DOC Rule 3 suspension is being set aside, the Appellant should not be disciplined for a direct violation of the EOTSS Acceptable Use of Information Technology Policy. [13]

Although I conclude that the Appellant had the right to correspond with Senator Eldridge about unaddressed serious workplace safety and security concerns and, therefore, his one-day suspension should be rescinded, this does not mean that DOC is powerless to reprimand the Appellant for any carelessness associated with his actions.  In the course of informing Senator Eldridge about serious problems in his work environment, including breaches of confidentiality, the Appellant revealed personnel and personally-identifying information that he should have redacted in order to maintain the privacy of individuals who did not consent to having their information shared.  While it is commendable that the Appellant sought to elevate his concerns, he should have been more cautious about not perpetuating the same type of privacy and confidentiality breaches that he sought to remedy.  For such privacy breaches as he may have occasioned, I believe that DOC would be justified in issuing a letter of reprimand to the Appellant admonishing him to take greater care should he need to raise similar legitimate concerns in the future.

CONCLUSION

Based on the preponderance of credible evidence, I conclude that DOC did not have just cause for administering a one-day suspension to the Appellant. Hence, his appeal is hereby allowed.

CIVIL SERVICE COMMISSION

/s/ Joseph Markey

Joseph Markey, Commissioner

By vote of the Civil Service Commission (Bowman, Chair; Dooley, Markey, McConney and Stein, Commissioners) on December 18, 2025.

Either party may file a motion for reconsideration within ten days of 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:
Patricia DeJuneas, Esq. (for Appellant)
Eamonn Sullivan, Esq. (for Respondent)

[1] As the Commission lacks jurisdiction to adjudicate allegations of wrongdoing involving other DOC employees who have not filed an appeal, or to pass on the reasonableness of discipline meted out to them, I have elected to identify any such third party by their initials only.

[2] One matter the Appellant complained about in this June 7 email had to do with a confidential investigation questionnaire containing his personally-identifying information having been left by a PSU Captain on a commonly shared and accessible office printer-copy machine.

[3] The Appellant specified elsewhere in his June 7 email that the treatment afforded the inmate involved “chemo therapy.”  [Resp. Exhibit 8]

[4] In this instance, the Appellant alleged to Senator Eldridge that the inmate being transported to a chemotherapy appointment had been held in a hospital parking lot for some three hours while the OIC attended to personal business and that the OIC had compelled the inmate to expose his genitals and use a portable “urine duck,” which allegedly was in violation of DOC’s inmate transportation policy.  The OIC allegedly received only a letter of reprimand.  [App. Exhibit 8]

[5] On July 21, 2023, Deputy Michael McDonald appears to have acknowledged that highly sensitive and confidential material had been erroneously uploaded to the shared Q:\ drive.  Nevertheless, the breach of confidentiality persisted for months thereafter.  [App. Exhibits 8 and 9]

[6] In fact, it reportedly took DOC over six months (from July 2023 to February 2024) to fully implement proper restrictions on staff access to confidential material available on the shared Q:\ drive. [Testimony of Smith]

[7] An action is “justified” if it is “done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind; guided by common sense and by correct rules of law.” Commissioners of Civil Service v. Municipal Ct. of Boston, 359 Mass. 211, 214 (1971); Cambridge v. Civil Service Comm’n, 43 Mass. App. Ct. 300, 304 (1997); Selectmen of Wakefield v. Judge of First Dist. Ct., 262 Mass. 477, 482 (1928).

[8] In its subsection (a), the whistleblower act defines a “retaliatory action” as “the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.” G. L. c. 149, § 185 (a) (5) (emphasis supplied). 

[9]  Subsection (c)(2) excuses a whistleblower’s failure to first notify a supervisor in writing of the improper or risky activity or practice where “he:  (A) is reasonably certain that the activity, policy or practice is known to one or more supervisors . . . ; (B) reasonably fears physical harm as a result of the disclosure provided; or (C) makes the disclosure to a public body . . . for the purpose of providing evidence of what the employee reasonably believes to be a crime.”  G.L. c. 149, § 185 (c) (2).

[10] Whether it was necessary to share with Senator Eldridge and his chief policy advisor as much confidential information as the Appellant did is certainly debatable.  But the whistleblower statute contains no exception from its protective reach for disclosure to appropriate governmental bodies of sensitive internal information. Nor does it “specify how or to whom an objection must be expressed in order to be considered a protected activity under its terms; . . . We discern no reason why even a single event could not constitute an ‘activity’ for purposes of the act.”  Edwards, supra, 488 Mass. at 569-570.  Indeed, rooting out possible corruption or endemic deleterious practices may depend in some circumstances on whistleblowers who share highly confidential internal information with external authorities. At any rate, a DOC regulation appears to dispose of the Respondent’s objection that the Appellant inappropriately disclosed to Senator Eldridge criminal history record information (CORI). 103 C.M.R. § 157.05 (exempting from the definition of CORI evaluative and intelligence, including facility security, information).

[11] As noted above, any suspension meets the statutory definition of “retaliatory action” under G. L. c. 149, § 185 (a) (5).  That the Appellant’s request, in his capacity as a union official, for an investigation into the improper actions of Superintendent N.A. very quickly thereafter resulted in his own legitimate actions being put under a microscope, and then subsequent punishment, quite clearly signals retaliatory action even in the absence of this definition under the statute.

[12] Doherty v. Civ. Serv. Comm'n, 486 Mass. 487, 493 (2020) (emphasis in original).

[13] The Appellant argues that the EOTSS policy is directly binding only on governmental entities, which in turn are supposed “to implement [their own] procedures that ensure their personnel comply with the requirements herein to safeguard information.”  [See Respondent Exhibit 10, sections 1-3.]  The Commission need not decide this point.  I do not wish to imply that DOC employees should not be following EOTSS policy and instructions.  Far from it.  But a suspension without pay may not issue in retaliation for protected whistleblowing activity. 

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