Friday, February 19, 2016

Stop! Or I’ll Say Stop Again!

The Commission has made its position clear when it comes to provisional appointments and provisional promotions in non-public safety positions. In short -- they aren’t getting involved. For examples click here, here, or here. However, as it likes to remind us, the Commission has the power to open up an investigation pursuant to M.G.L c. 31 §2(a) when it receives allegations that an appointment process was not consistent with “basic merit principles.” In Palluccio v. DOR, the Commission found that the DOR deviated from its own self-imposed appointment process and stopped ranking and scoring interviews. Although the Commission chose not to open an investigation, it did put the DOR on notice that going forward, the DOR would need “to comply with its own internal practices regarding appointments including, but not limited to, the use of an acceptable scoring and ranking process.”

One year later, an appeal brought by Karen O’Connor-Powers revealed that the DOR hadn’t received the message; it was still using an informal “consensus” rating process as opposed to a tally sheet and rating system. However, instead of opening up an investigation, the Commission simply expressed “dismay” and threatened that it may open an investigation “in the future” if the DOR continues to ignore the Commission’s directive in Palluccio. What isn’t clear is exactly how long the DOR will be aloud to ignore Commission instruction. It is clear that the Commission would be on firm ground to stop the DOR. The Supreme Judicial Court recently commented that procedures like the DORs, conducive to “subjective or arbitrary decision making could be a ‘red flag’ signaling that a bypass decision resulting from the flawed procedures was motivated by political considerations, favoritism, or bias.” Sherman v. Randolph, 472 Mass. 802, 812 (2015). It is time for the Commission to stop warning, and start acting to put the DOR’s subjective appointment process to an end. You can find a copy of the O’Connor-Powers decision here.

Tuesday, January 5, 2016

Lies, Damn Lies, and Statistics

The Civil Service Commission just released statistics on the work completed in 2015. By tracking the total cases still pending from 2006 through 2015, the report shows that the Commission has made great strides in terms of efficiency. Back in 2006 the Commission had 550 appeals that spent more than 12 months awaiting a decision. By the close of 2015 that number was down to 27. The concern, however, is that this newfound efficiency is at the expense of individuals bringing appeals. The newly released statistics also reveal that 4 out of 5 bypass appeals are denied or dismissed. The numbers for discipline and layoff appeals are even bleaker – nearly 9 in 10 of these appeals are denied. Bringing an appeal at the Civil Service Commission is not easy, and procedural mistakes can prove fatal. One of the best ways to become part of the successful minority is to hire competent counsel to represent you. If you believe that your civil service rights have been violated, don’t delay in contacting our office.

Find the full Civil Service Commission report here.

Friday, September 25, 2015

The Commission Ties Its Own Hands

Apparently, the Civil Service Commission doesn’t know its own strength. In a disappointing and surprising decision, the Commission refused to provide meaningful relief to a candidate who had previously won his bypass appeal even though the Town repeatedly violated civil service law (before and after his bypass appeal). The procedural details are messy. Adam Paicos was bypassed for the position of police officer with the Town of Maynard. He appealed his bypass and won. The Commission granted him the relief that typically comes with a successful bypass appeal: placement at the top of the list for one more consideration. After his victory, Maynard attempted – unsuccessfully – to opt out of civil service law.[1] Maynard subsequently appointed police officers without using a civil service list or considering Mr. Paicos. Encouragingly, Mr. Paicos was able to convince the Commission to open up an investigation into Maynard’s hiring practices pursuant to Chapter 31, section 2(a). However, the Commission astoundingly took the position that it was powerless to address what took place. What is so surprising about this decision is that the legislation that empowers the Civil Service Commission, Chapter 310 of the Acts of 1993, explicitly authorizes it “to take such action as will restore and protect” the rights of people “prejudiced through no fault of [their] own,” such as Mr. Paicos. Time and again the courts have upheld the Commissions broad discretion to fashion appropriate relief. Here, the Commission seemed to forget that it had this power in the first place. Hopefully the Commission will remember soon before too many other Cities and Towns attempt to mimic Maynard’s shenanigans. Click here to read the full decision.

[1] Cities and Towns can opt out of civil service law, but Maynard failed to follow the proper procedure here.

Wednesday, July 1, 2015

Reversal of Commission discipline decision upheld: Commission exceeded authority by reducing termination to suspension

The Massachusetts Appeals Court has affirmed a Superior Court judge's ruling that the Civil Service Commission exceeded its authority when it granted the disciplinary appeal of a Maynard police officer and modified his termination to a two-year suspension. The police officer had been charged with violating Department rules when he moved security cameras at the police station and being insubordinate for leaving a meeting concerning an investigation into the camera incident. The Commission, in a 3-2 decision, found just cause for the rule violation, but also found that the charge of insubordination was not supported, and as a result transferred the termination to a two-year suspension. In reversing the Commission's decision, a Superior Court judge noted that since the Commission agreed that the officer could be suspended for two years due to his conduct, it was clear that the town had just cause to terminate him. The Appeals Court agreed with the Superior Court.

The decision is a reminder not to celebrate too early after winning an appeal before the Civil Service Commission. While the Commission's decisions are not overturned as frequently as they once were, courts will still reverse a Commission decision where it has exceeded its authority. In the context of disciplinary appeals, the Commission looks anew at the evidence supporting the discipline but does not perform its task on a completely blank slate. Rather, the Commission views the evidence  in the circumstances that existed when the appointing authority made its decision. In this case, it seems that the Commission did not review the evidence through the proper lens.

Monday, June 15, 2015

Provisional Promotions Cannot Last Indefinitely In Public Safety Positions

In a decision with far-reaching implications, the Civil Service Commission has ordered the Massachusetts Department of Corrections to stop making provisional promotions into the position of captain. The decision is the first time in years that the Commission has taken a firm stand on this widespread practice. In the case of the Department of Corrections (DOC), it always made provisional promotions to the rank of captain rather than hold a competitive examination and appoint from the results of the examination. Last December, a group of Lieutenants (the next lower grade below captain) asked the Commission to open an investigation into this practice, arguing that it violated civil service law. In a unanimous decision on May 28, 2015, the Commission agreed and granted the petitioner’s request to initiate an investigation.

The practice of making provisional appointments rather than appoint or promote from the results of the latest examination has become a widespread practice among civil service departments. The DOC argued that the process they used – limiting applicants to those with at least one year at Lieutenant, then scoring initial interviews, and convening second interviews for the top scorers – was fair and merit based. The Human Resources Division (HRD), the agency charged with administering examinations, argued that they did not have the money to create a test from scratch, and that instituting a test now would harm those who were provisionally appointed over the past thirty years.

The Commission has accepted these types of arguments regarding non-public safety appointments and promotions. While the statute only allows provisional appointments or promotions when there is no eligible list or if the list has less than three names on it (called a short list), such appointments/promotions have become the norm in non-public safety positions because it has been nearly twenty years since any test was offered. The Commission has instituted a set of rules that appointing authorities must follow when making provisional appointments/promotions to non-public safety positions (click here or call our office for details), but has declined to take sweeping action.

Thankfully, the Commission has now decided that public safety positions are different. Under the Commission’s decision, HRD and the DOC have until the end of August to propose effective and efficient solutions, but the requirement is clear: competitive examinations (or assessment centers) are required for public safety promotions. You can read the commission’s decision here.

This decision is also a helpful reminder that the Commission is authorized to open an investigation into allegations that basic merit principles and/or civil service laws are being violated. This power is expressly authorized under Section 2(a) of Chapter 31 and is in addition to the Commission’s authority under Section 2(b) of the statute to hear bypass appeals, discipline appeals, termination appeals, and classification appeals. If you believe that your department is violating basic merit principles and/or civil service laws, please call our office to see if we can help you request an investigation.

Sunday, March 8, 2015

Termination Hearings Are For YOU, Not Your Employer.

As a tenured civil service employee, you can't be terminated or suspended without good cause. You also have a right to a hearing before being terminated or suspended. Before hand, your employer has to hold a hearing, but you are NOT required to testify. The Massachusetts Appeals Court recently made clear that the procedural protections available to a tenured civil service employee (written notice of the disciplinary action, a hearing on whether there is just cause for the proposed action, the opportunity to be answer the allegations personally or by counsel, and appeal of any hearing determination to the Civil Service Commission) are benefits afforded to an employee and not obligations imposed on the employee.

In Worcester v. Civil Service Commission, et al.the Worcester Police Department began proceedings to terminate Officer Leon Dykas. The City sent Dykas a notice of his upcoming termination hearing, along with an order to attend the hearing and testify truthfully. When Dykas refused to testify at the termination hearing, the City attempted to terminate Dykas not for the underlying offense, but for violating their order to testify. Dykas appealed, arguing that the order to testify was unlawful. The Appeals Court emphatically agreed. The hearing, reasoned the Court, is an opportunity for the employee to be provided with the reasons for termination, not “to provide the appointing authority with an additional investigative venue once the decision to terminate employment or to sanction the employee has been made.”

The main point is that tenured civil service employees, unlike at-will employees, have the benefit of procedural protections against unjust discipline or termination. How the employee uses those protections is his or her decision. If you’ve received notice of a suspension or termination that you think is unjust, call our office to find out how we may be able to help.

Monday, December 29, 2014

Commission grants bypass appeal (and hell doesn't freeze over)

For the past several years, the Civil Service Commission has granted bypass appeals only when it has found that cronyism affected the selection process or, in a rarer circumstance, that the investigation into the bypassed candidate by the appointing authority was clearly insufficient. This month, however, the Commission  granted the appeal of a bypassed Braintree police candidate based on the lack of a reasonable justification for the decision. In Morris v. Braintree Police Department, the City of Braintree bypassed a black candidate in favor of five white candidates based primarily on his interview performance. Mr. Morris had interviewed twice for appointment and both times not selected based on his interview, although the first non-appointment was not a bypass since no one lower than him was apparently appointed. The Commission found that Mr. Morris's bypass resulted from an unfairly subjective review of his two interviews and granted the appeal.

As the Commission found, the interview panel did not take notes or score either interview based on a uniform criteria, but discussed Mr. Morris's performance weeks after the interviews to arrive at a uniform assessment. Moreover, the Commission, which had an audio recording of each interview, found that many of the observations by the panel about Mr. Morris's performance were simply wrong. The Commission also faulted Braintree for focusing solely on its subjective assessment of Mr. Morris's interview performance when it also had objective evidence of his long, unblemished career in law enforcement. In this regard, the Commission found that the bypass was not the result of the required "thorough review" needed to support a bypass decision.

The Morris decision is an encouraging development for bypassed civil service candidates. Far too many candidates, in this attorney's experience, are bypassed based on subjective assessments from interviews and background investigations. Hopefully this decision indicates that the Commission is prepared to scrutinize bypass decisions when based on such subjective assessments more carefully going forward.