Thursday, June 16, 2016

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.

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.