Superior Court upholds Commission decision that employee cannot be disciplined for failing to testify at disciplinary hearing

The Civil Service Commission published a decision this week by the Superior Court affirming the Commission's ruling that a civil service employee cannot be disciplined for refusing to testify at his or her own disciplinary hearing. The decision in City of Worcester v. Civil Service Commission and Dykstra was actually issued in July 2012, but for unknown reason was only published this week on the Commission's website.

The Superior Court in Dykstra agreed with the Commission that the employee could choose whether or not to testify at his own hearing, and Worcester's policy requiring its employees to testify could not be enforced to discipline the employee further for refusing to testify. The Court agreed with the Commission's reasoning that Section 41 disciplinary hearings are intended to protect an employee's due process rights and not serve as an investigatory tool for an appointing authority.

Despite the ruling, civil service employees facing Section 41 hearings should still carefully consider whether or not to testify in their defense. The Superior Court found that the hearing officer could draw a negative inference from the employee's refusal to testify.

Appeals Court, once again, upholds Commission decision

Following a familiar pattern, a civil service employee upset with a ruling by the Civil Service Commission – in this case, the denial of his appeal of a one-year suspension - struck out with his second appeal of the decision. The decision by the Massachusetts Appeals Court in Schiavone v. City of Medford is not remarkable except as another reminder that employees who lose at the Commission should think long and hard before appealing the decision.

In this case, the City of Medford suspended the employee based on a finding that he violated the City's sexual harassment policy. The Appeals Court agreed with the Superior Court (which is the first level of appellate review for the Commission) that the decision to uphold the year-long suspension was "legally tenable" based on the substantial evidence. (The original decision and findings were made by a magistrate judge. The Commission reviewed and accepted the magistrate's findings.)

I always tell my clients who have received an unfavorable Civil Service Commission decision and want to appeal that the standard of review typically makes the chances of success very unlikely. In the rare circumstance that an appeal challenges the legal basis for the Commission's decision, the standard is more favorable because it requires a fresh look at the legal reasoning. This is what happened in the Kaveleski decision, which clarified the standard for the Commission to apply to appeals of psychological bypasses.  A court, however, does not take a fresh look at factual findings by the Commission.  This is important to remember when considering whether to appeal an unfavorable decision by the Civil Service Commission.

Commissions rules on Boston police drug testing appeal

The Civil Service Commission issued a ruling on February 28, 2013 in a decade-old dispute regarding Boston Police Department drug testing. The case, In re Boston Police Department Drug Testing Appeals, was brought by ten Boston police officers who had been discharged after hair samples tested positive for illegal drugs. The consolidated hearing of these appeals was postponed while the officers  focused on a federal lawsuit regarding the same issue. The Commission finally held hearings on the appeals from October 21, 2010 to February 4, 2011.

In a sweeping 134-page opinion, the Commission affirmed the BPD's authority under basic merit principles of the civil service law to use hair samples to determine whether an officer had ingested illegal drugs. However, the Commission also ruled that a positive test result may not be conclusive, and depending on the evidence in a particular case, may or may not justify termination or other discipline under the just cause standard.

Under these principles, the Commission affirmed the termination of four of the officers in the consolidated appeals and allowed in part the appeals of the six other officers as the evidence did not establish just cause for their termination.

Commission: Only HRD can remove names from eligility lists

In two decisions handed down last week, the Civil Service Commission clarified the procedure for removing a candidate's name from an eligibility list for a civil service position. In Radochia v. City of Somerville, the candidate appealed a bypass of his selection for a firefighter position as well as the removal of his name from all future certifications for the position. The Commission upheld the bypass decision, but ruled that the City overstepped its authority in deciding unilaterally to remove the candidate's name from all future certifications. The Commission ruled that if a municipality wants to remove a candidate permanently from consideration on all future certifications from an existing eligibility list, it must request and receive approval from the state's Human Resources Division, which waiss authorize to remove candidate's names under Personnel Administrative Rule 9 ("PAR.09). Equally important, the Commission clarified that the standard to justify a removal from an eligibility list is far more stringent than the reasonable justification standard for a bypass. The Commission explained:

"Thus, the PAR.09 removal process appears to be meant to apply only in exceptional circumstances -- e.g., felony convictions which are statutory disqualifiers for police officer candidates -- and is not intended to serve as a routine substitute for the established statutory process for bypassing a candidate in the next hiring cycle for the same legitimate, but judgmental, reasons established in the prior cycle, after due inquiry to confirm that there was no material changed in the relevant circumstances." 

The Commission also issued a decision, Carroll v. Town of Stoneham, in which it dismissed a candidate's bypass appeal as moot but also reaffirmed that it was HRD's responsibility, not the town's, to review and approve any request for a permanent removal from the eligibility list. 

State's highest court upholds Commission decision, reversing Superior Court decision that overturned Commission

The Supreme Judicial Court issued its highly-anticipated decision in Police Department of Boston v. Kaveleski today concerning the controversial issue of psychological bypasses, ruling that the Commission had acted within its discretion in finding that Boston failed to justify its psychological bypass of a candidate for police officer despite not having a psychological evaluation to counter the City's evaluation. The Commission overturned the bypass in 2009 by a 3-2 decision, finding that the opinions of the City's psychiatrists were subjective and based primarily on their impressions of the candidate's appearance and performance during the interviews rather than a finding of psychological unfitness. The decisions prompted a strong dissent from Chairman Christopher Bowman who argued that the Commission improperly substituted its opinion in place of the City's opinion.

The Superior Court overturned the Commission's decision, agreeing with Bowman that the Commission had exceeded its discretion in second-guessing the City's opinion regarding the candidate's fitness.

The SJC reversed the Superior Court decision, ruling that the Commission had acted within its discretion in rejecting the opinions offered by the City's psychiatrists despite not having any alternative expert opinion. The SJC agreed with the City that the Commission had improperly considered the testimony offered by experts in another bypass appeal, but ruled that the Commission's decision could be upheld even without considering this testimony.

I will provide more detailed analysis about the decision soon.

Commissions orders investigation into make-up examination

On November 2, 2012, the Commission issued a decision in which it opened an investigation into a make-up examination given by the state's Human Resources Division for two vacant lieutenant positions in the Brockton Police Department.  HRD administered the make-up examination to two candidates who the Commission had earlier ruled had been mistakenly not allowed to take the original examination. These candidates scored higher on the make-up test than all the candidates who took the original examination. Subsequently, separate appeals were filed alleging that these two candidates had an unfair advantage because many of the same questions were used on the make-up test as on the original and these candidates had learned about the questions through various websites. The Commission scheduled a pre-hearing conference for the investigation for early December.

Commission issues 14 decisions, granting bypass appeal and ending investigation in selective certification

On October 18, 2012, the Civil Service Commission published 14 decisions on its website. Two of the decisions are particularly noteworthy. In Ortiz v. Boston Police Department, the Commission granted a bypass appeal to a candidate for original appointment as a Boston police officer. The decision is noteworthy because, as stated on this blog repeatedly, bypass appeals have become increasingly difficult to win. The Ortiz decision was the only bypass appeal granted by the Commission in this group of decisions out of seven such appeals. Equally significant, the Commission based its unanimous decision not on evidence of political overtones or favoritism in the selection process, but on the lack of a reasonable investigation into the candidate's background. Specifically, the Commission found that the roundtable that recommended the bypass relied on erroneous negative information about the candidate and did not consider, as it was unaware of, highly favorable information about the candidate. The Commission ruled that the Boston Police Department should perform a reasonably thorough investigation before deciding whether or not to bypass the candidate.

In In re: Investigation of Selective Certification for Female Police Officers, the Commission determined that no further investigation was warranted into the Boston Police Department's use of selective certification for female candidates for original appointment. The investigation resulted from an appeal filed by a male candidate who was not reached for consider when the BPD used a selective gender certification in its March 2010 appointment process. [Full disclosure: the Law Office of Joseph L. Sulman represents the appellant in the underlying appeal.]  That appeal resulted in a decision last November 7, 2011 in Pugsley v. Boston Police Department, where the Commission found that the BPD and the Human Resources Division violated civil service law in the process used to request and approve the March 2010 selective gender certification. The Commission's investigation did not reach any findings concerning that specific appeal, but concluded that no further investigation was warranted into the selective gender certification process used by the BPD in general.