“Voluntary” Withdrawals from Boston Police Department

The Civil Service Commission took the Boston Police Department to task for a number of unfair and deceptive hiring practices. Read the entire decision here. Most importantly, the Commission commanded the BPD to notify candidates that they have a right to appeal -- and get independent review of any potential bypass reasons -- if the candidate proceeds and declines to “voluntarily” withdraw from the hiring process. BPD has long encouraged candidates to withdraw, providing them “ominous -- and misleading -- information” about what might happen if a candidate declines to do so. Three points made by the Commission bear repeating here:

(1) If you are ultimately bypassed, you have a right to appeal to the Civil Service Commission. On appeal, the Appointing Authority (here the BPD) has the burden to show that the reasons for the bypass are sound and sufficient. As yesterday’s orders show, the Commission is well aware that BPD violates civil service law, and is well equipped to look critically and closely at assertions made by the BPD.

(2) If you withdraw from consideration, you do not have a right to appeal. This -- of course -- is why BPD wants the candidates that it won’t be selecting to withdraw. If the BPD can convince candidates to withdraw, the Department will not have to explain itself to anyone.

(3) A bypass only affects one hiring process. The Commission aptly pointed out that the BPD has been telling candidates that a bypass could lead to a candidate’s removal from an eligible list. This is not true. Removal from an eligible list requires a separate administrative procedure (called a PAR.09 removal) and requires the appointing authority seeking removal to meet an even higher standard than applies to a bypass.

We are all too familiar with the BPD’s “voluntary” withdrawal process. Too often we encounter candidates when it is already too late -- after he or she has already withdrawn. If you are asked to withdraw your candidacy -- from BPD, or any Department -- ask for time to consider your options and contact our office. You have rights, and we may be able to help you protect them.

Right to Equity and Uniformity In Discipline

In a significant rebuke to the Civil Service Commission, a Judge of the Superior Court reversed the termination of a police officer fired by the Town of West Bridgewater for lying because the Commission failed to consider the issue of favoritism raised by the terminated officer. Read the Superior Court decision here. The decision is significant because it means that even though the officer’s conduct on its own may have warranted termination, the Commission was required to consider whether the Town exhibited favoritism in how it treated this officer’s misconduct compared to how it treated other officers who committed similar misconduct.  This is referred to as an employee’s right to equity and uniformity in discipline, and this is a right that a court can enforce if the Commission fails to.

The Superior Court’s decision confirms that well-established rule that, along with the power to independently find facts, the Commission has the power to modify a discipline. That means that even if the Commission decides that an employee’s conduct warrants discipline, the Commission is not required to rubber stamp the discipline issued; it has the power to change it or reduce it. One of the most common reasons that the Commission modifies a discipline is because the appointing authority failed to treat similarly situated individuals with similar discipline.

In Desmond v. West Bridgewater, the Commission found that Officer Desmond exhibited a pattern of untruthfulness and upheld the Town’s decision to terminate. You can read the underlying Commission decision here. However, on appeal the Superior Court overturned the termination and ordered the Commission to look at the matter again. The Superior Court pointed out that Desmond presented evidence that another officer had lied, and in circumstances “much worse” than Desmond’s.  Although the Superior Court affirmed that Desmond should be disciplined, the Court held that the lack of uniformity between similarly situated individuals required the termination be vacated. The Court recognized that a lack of uniformity could indicate favoritism and bias, which violates civil service law. If you have been disciplined more harshly than others in your situation, you may be able to get your discipline reduced by appealing to the Civil Service Commission. But you have to act quickly: within ten days of the final disciplinary letter. For more information, contact our office.

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 allowed 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.

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.

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.