Thursday, May 1, 2014

Judge Says HRD Must Review and Approve Bypass Reasons

This blog has previously drawn attention to under-staffing problems at HRD. If a February decision in Superior Court stands, the problem could get much worse. Over the past decade or so HRD has tried to address a budget crunch by delegating some of its responsibilities to cities and towns across the Commonwealth. One of these responsibilities that HRD has delegated is the authority to “receive” the written statement of reasons for a bypass.

Under Chapter 31, in order to bypass a candidate, an appointing authority must file with HRD a written statement of reasons for making a selection out of rank order. Civil service law states that a bypass is only effective only HRD receives this notice. In Mallloch v. Clarkson et al. the Superior Court determined that the word “receive” meant more than simply accepting the written statement, and instead required a substantive review and approval of those reasons. It followed that if a substantive review and approval was required, HRD could not delegate to an appointing authority the power to review and approve itself. The decision has been appealed, but if upheld it will have real consequences on how civil service appointments are made going forward. Check back here for updates as the appeal goes forward. This is one to watch.

Saturday, April 26, 2014

HRD under-staffing hurting candidatse

A recent Civil Service Commission decision has highlighted how persistent understaffing at the Human Resources Division's Civil Service Unit negatively affects civil service candidates and employees. Sarah Fisher, a candidate for appointment to firefighter in Chicopee, took the firefighter's examination in April 2010 but could not take the Physical Ability Test scheduled for that August due to her pregnancy. In the meantime, Chicopee requested and received a certification for original appointment in March 2011, and Ms. Fisher's name did not appear on the certification because she had not taken the PAT. In July 2011, after she gave birth, Ms. Fisher made repeated request to HRD to reschedule her PAT. HRD never responded. Eventually, after she had a legislator contact HRD, the agency arranged for her PAT in April 2012. After passing the PAT, her name was added to the certification from the 2010 exam, but by that time Chicopee had already made its appointments from the list.

Ms. Fisher lost her appeal in part because her overall score after taking the PAT would not have placed her within the 2n+1 range of candidates who could have been considered for appointment, so she was not technically "aggrieved" under Chapter 31. However, her ordeal highlights an increasingly reported issue about HRD not being able to respond to questions and concerns of individual candidates and civil service employees. The understaffing at the Civil Service Unit has been well known for sometime. It is apparent that the understaffing affects the rights of individual candidates to equal and fair consideration in appointments. This problem is especially problematic when it implicates rights enjoyed by pregnant candidates, since this raises concerns that HRD's understaffing has a disproportionately negative effect on women.  

Wednesday, February 5, 2014

2013 statistics show majority of bypass appeals get results

The Civil Service Commission issued its 2013 Year End Statistics last month and the data indicates reason for optimism, at least as far as bypass appeals go. In 2013, 48 percent of bypass appeals cases ended in the bypass being upheld. Out of the remaining 52 percent, 41 percent ended with the Commission granting relief based on mutual agreement, and 11 percent ended in the Commission granting the appeal and ruling that the bypass was invalid.

It may seem discouraging that only 11 percent of the appeals received a final decision in favor of the appellant (i.e. the bypassed candidate). But that's misleading; when the Commission grants relief based on mutual decision, as it did in 41 percent of the cases last year, the result is usually the same as a successful appeal - the bypassed candidate is placed at the top of the certification for appointment or promotion. So while the appellant does not have the satisfaction of a decision ruling that the bypass was not justified, the effect is the same.

In my practice, many of my clients receive relief through mutual agreement. It saves both the client and the appointing authority time and money, and it usually means that the client has a good case and would probably win the appeal if it went to a full decision.

Back after brief hiatus

Due to several factors, primarily an increasingly busy practice, I've been unable to post to this blog over the last several months. So I will be increasing my activity for the next several months to try to make up for it. Call it a delayed New Years resolution.

Sunday, October 27, 2013

Superior Court reverses Commission decision

In 2010, the Civil Service Commission upheld a psychological bypass of a candidate for the Boston Police Department under unusual circumstances. In a 3-2 decision, a majority of the Commission voted to uphold the bypass, yet they also accepted the factual findings made by Commissioner Daniel Henderson, who served as the hearing officer and voted to grant the appeal and overturn the bypass. Now a Superior Court judge has reversed that decision and overturned the bypass because the Commission did not sufficiently explain why it reached an opposite conclusion from Henderson while accepting his findings. The Superior Court ruled that since the Commission rejected the conclusions of the hearing officer, its substituted conclusion must be supported by substantial evidence. The Court ruled that the accepted factual findings could not support the bypass, and thus the conclusion required new findings of fact. As none were made, the Commission's decision was reversed.

Sunday, September 22, 2013

Commission issues seven bypass decisions: seven appeals dismissed

Continuing the trend of upholding bypass appeals except under the most compelling circumstance, the Civil Service Commission issued decisions in seven bypass appeals last week and denied each appeal. None of the decisions are particularly remarkable (full disclosure: I represented two of the appellants), but it should be a reminder to civil service applicants that it has become extremely challenging to overturn a bypass. As I wrote a couple months ago, the rate of success for appeals that go to a full hearing is only 10%.

Thursday, July 18, 2013

Year to date statistics published by the Commission

It's been clear for sometime now that appellants do not stand a good chance of winning a bypass appeal at the Civil Service Commission, and recent statistics published by the Commission confirm this. At the beginning of this month, the Commission published statistics on its caseload to date for the year, including information on the number of successful appeals. The results are not encouraging. So far in 2013, only ten percent (10%) of appeals challenging bypasses have been successful. This does not include those cases where the appointing authority and the candidate agreed to relief based on a mutual decision, which count for 40% of appeals. Out of the 29 cases that have gone to a full hearing and been decided by the Commission, only five (5) have resulted in victories for the appellant.

This continues a downward trend for civil service candidates appealing bypass decisions. The numbers are stark. Since 2007, the percentage of bypass appeals that succeeded and resulted in relief being granted by the Commission is as follows:


2007 - 10% 
2008 - 27%
2009 - 27%
2010 - 25%
2011 - 14%
2012 - 15%
2013 YTD - 10%

The years 2008 through 2010 stand out. What happened in those years that caused the Commission to grant such a larger percentage of bypass appeals? It's a combination of factors. First, the makeup of the Commission has changed, and commissioners who were more likely to vote in favor of an appeal have left. But more significantly, a number of decisions by the Commission granting bypass appeals were overturned by the Superior Court, generally on the basis that the Commission did not have the authority to second-guess the decision-making of appointing authorities. The statistics show that out of all 2008 decisions that were appealed, 35% were overturned, and for 2009 decisions that were appealed, the reversals increased to 38%. As a result, the Commission became more deferential to the decision-making of appointing authorities and now only grant bypasses (broadly speaking) when there is strong evidence of improper bypass, favoritism, or that the bypass resulted from a clearly unreasonable investigation into the candidate. It is probably not coincidental that of the 2010 and 2011 decisions that were appealed, the reversals dropped to 17% and 18%, respectively.