Rossborough v. Plymouth Police Dept.

The Police Chief of Plymouth, MA terminated Rossborough from her position as a permanent intermittent police officer for violating Mass. G.L. c. 41, sec. 101A which provides that, after January 1, 1988, ” . . . no person who smokes any tobacco product shall be eligible as a police officer or firefighter in a city or town and no person appointed after said date shall continue in such office or position if such person thereafter smokes any tobacco products.”  Rossborough was appointed in January 1989 and admitted smoking in 1993.  The Mass. Civil Service Commission ordered the town to reinstate Rossborough if she enters a smoking cessation program and stops smoking.  The town has filed an appeal.  See Scaccia, J., “Smoking-Ban Firing Smells Bad,” Boston Herald, January 16, 1994, 25; Preer, R., “Officer Fired for Smoking May Get Panel to Hear Case,” Boston Globe, March 15, 1994, 19; “Hearing Begins for Fired Officer,” Boston Globe, April 28, 1994, 36; Dowdy, Z., “State Panel Reinstates Plymouth Officer Fired for Smoking on Duty,” Boston Globe, August 12, 1994, 31; “Smoking-on-job Officer Reinstated,” Patriot Ledger, (Quincy, MA) August 12, 1994, 29; Brown, N. P., “Chief Stands by Decision on Smoking,” Patriot Ledger August 13/14, 1994, 1; “Plymouth Misfires on Smoking Cop,” Patriot Ledger, August 13/14, 1994, 16; Harbert, R., “Town Must Rehire Police Officer Fired for Smoking on Job,” Old Colony Memorial (Plymouth, MA) August 18, 1994, A10; “Fire and Smoke,” Old Colony Memorial (Plymouth, MA),  August 25, 1994, A16; Johnson, M., “Town Ordered to Rehire Fired Police Officer,” The Beacon, September 1994, 4; and “Town Appeals Ruling on Smoking Cop,” Old Colony Memorial, September 1, 1994, A2.

On October 20, 1997, the Massachusetts Supreme Judicial Court, in Town of Plymouth v. Civil Service Commission, 426 Mass. 1, 686 N.E.2d 188, 1997 Mass. LEXIS 372, 13 BNA IER Cas 372 (1997), reversed the Civil Service Commission’s decision, ruling that the statute that bans smoking by police and firefighters who were hired after January 1, 1988 does not contain the discretionary language that appears in the statute dealing with employees who have alcohol problems.  The Legislature’s purpose in enacting the statute was to ban smoking, not in order to improve a deficient job performance, but to prevent police and firefighters from increasing their risk of high blood pressure and heart disease and then needing disability retirement benefits.  The SJC said that the “Legislature appears to have made a policy decision, based on financial interests, that employment in these positions should no longer be open . . . . to persons who smoke tobacco products so that, over a period of time, police and fire departments will have a work force free of a serious disease-causing addiction.”  See Ellement, J., “SJC Upholds Smoking Ban for Officers,” Boston Globe, October 21, 1997, A1, A18; Estes, A., “SJC: Officers Should Be Fired If They Light Up,” Boston Herald, October 21, 1997, 18; “SJC: Policemen and Firemen Can Be Fired for Smoking on the Job,” The Recorder (Greenfield, MA), October 21, 1997, 5; and Kelly, M., Race, T., “Smoking Ban for Police, Firefighters Backed by Court,” Patriot Ledger, October 21, 1997, 1, 8; Allegrini, E., “Plymouth Cop Firing Upheld,” The Enterprise (Brockton, MA), October 21, 1997, A1, A4; Harbert, R., “Ruling Gives Some Cops Nicotine Fit,” Old Colony Memorial, October 23, 1997, 1; and “Smokers Snuffed Out of Public Safety Jobs,” Beacon Hill, October 27, 1997, 15.

Massachusetts Civil Service Commission, Case No. D-4833 (1994).