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.

Monday, July 1, 2013

Psychological bypass overturned

In one of the first Civil Service Commission decisions concerning a psychological bypass after the landmark Kaveleski decision by the Supreme Judicial Court, the Commission voted unanimously to grant the appeal of a candidate to the Boston Police Department who had been bypassed as a result of a psychological evaluation. The decision is notable for being unanimous, unlike many decisions regarding psychological bypasses before Kaveleski. The Commission faulted the evaluator for basing his findings on "subjective impressions on the candidate's past conduct that the BPD already knew about and found not to be disqualifying" (emphasis in original), a finding that may be critical when applied to future appeals. It is also notable that, although the Appellant retained an expert to offer competing opinion about his psychological fitness, the Commission did not mention the Appellant's expert in explaining its ruling, instead focusing on the deficiencies in the City's expert's opinion.

In Civil Service Commission appeals, tie goes to the winner

There's an unwritten rule in baseball that in a race to the base, if the ball and the runner arrive at the same time, the tie goes to the runner (apparently, it's not actually a rule, as you'll see by the previous link, but it's a useful analogy). There's a similar rule now for the Civil Service Commission. On July 1, the Supreme Judicial Court decided that when the Commission voted two to two on the issue of whether to affirm a decision by a hearing officer at the Division of Administrative Law Appeals ("DALA"), the effect was to affirm the hearing officer's ruling and make it the final decision of the Commission.

The case arose out of the appeal by two employees at the Department of Corrections regarding their termination. The hearing officer at DALA ruled against the employees, affirming the termination. After the Commission, which did not have a fifth member at the time, split in its review of the decision, the Superior Court ruled on appeal that the tie vote meant that the appeal had been dismissed. If this became law, it would mean that a tie vote by the Commission would make the findings of the DALA hearing officer irrelevant on appeal. Since the SJC ruled otherwise, a tie vote now means that the DALA decision becomes the final decision of the Commission and subject to judicial review on appeal.