Commission: Only HRD can remove names from eligility lists

In two decisions handed down last week, the Civil Service Commission clarified the procedure for removing a candidate's name from an eligibility list for a civil service position. In Radochia v. City of Somerville, the candidate appealed a bypass of his selection for a firefighter position as well as the removal of his name from all future certifications for the position. The Commission upheld the bypass decision, but ruled that the City overstepped its authority in deciding unilaterally to remove the candidate's name from all future certifications. The Commission ruled that if a municipality wants to remove a candidate permanently from consideration on all future certifications from an existing eligibility list, it must request and receive approval from the state's Human Resources Division, which waiss authorize to remove candidate's names under Personnel Administrative Rule 9 ("PAR.09). Equally important, the Commission clarified that the standard to justify a removal from an eligibility list is far more stringent than the reasonable justification standard for a bypass. The Commission explained:

"Thus, the PAR.09 removal process appears to be meant to apply only in exceptional circumstances -- e.g., felony convictions which are statutory disqualifiers for police officer candidates -- and is not intended to serve as a routine substitute for the established statutory process for bypassing a candidate in the next hiring cycle for the same legitimate, but judgmental, reasons established in the prior cycle, after due inquiry to confirm that there was no material changed in the relevant circumstances." 

The Commission also issued a decision, Carroll v. Town of Stoneham, in which it dismissed a candidate's bypass appeal as moot but also reaffirmed that it was HRD's responsibility, not the town's, to review and approve any request for a permanent removal from the eligibility list. 

State's highest court upholds Commission decision, reversing Superior Court decision that overturned Commission

The Supreme Judicial Court issued its highly-anticipated decision in Police Department of Boston v. Kaveleski today concerning the controversial issue of psychological bypasses, ruling that the Commission had acted within its discretion in finding that Boston failed to justify its psychological bypass of a candidate for police officer despite not having a psychological evaluation to counter the City's evaluation. The Commission overturned the bypass in 2009 by a 3-2 decision, finding that the opinions of the City's psychiatrists were subjective and based primarily on their impressions of the candidate's appearance and performance during the interviews rather than a finding of psychological unfitness. The decisions prompted a strong dissent from Chairman Christopher Bowman who argued that the Commission improperly substituted its opinion in place of the City's opinion.

The Superior Court overturned the Commission's decision, agreeing with Bowman that the Commission had exceeded its discretion in second-guessing the City's opinion regarding the candidate's fitness.

The SJC reversed the Superior Court decision, ruling that the Commission had acted within its discretion in rejecting the opinions offered by the City's psychiatrists despite not having any alternative expert opinion. The SJC agreed with the City that the Commission had improperly considered the testimony offered by experts in another bypass appeal, but ruled that the Commission's decision could be upheld even without considering this testimony.

I will provide more detailed analysis about the decision soon.

Commissions orders investigation into make-up examination

On November 2, 2012, the Commission issued a decision in which it opened an investigation into a make-up examination given by the state's Human Resources Division for two vacant lieutenant positions in the Brockton Police Department.  HRD administered the make-up examination to two candidates who the Commission had earlier ruled had been mistakenly not allowed to take the original examination. These candidates scored higher on the make-up test than all the candidates who took the original examination. Subsequently, separate appeals were filed alleging that these two candidates had an unfair advantage because many of the same questions were used on the make-up test as on the original and these candidates had learned about the questions through various websites. The Commission scheduled a pre-hearing conference for the investigation for early December.

Commission issues 14 decisions, granting bypass appeal and ending investigation in selective certification

On October 18, 2012, the Civil Service Commission published 14 decisions on its website. Two of the decisions are particularly noteworthy. In Ortiz v. Boston Police Department, the Commission granted a bypass appeal to a candidate for original appointment as a Boston police officer. The decision is noteworthy because, as stated on this blog repeatedly, bypass appeals have become increasingly difficult to win. The Ortiz decision was the only bypass appeal granted by the Commission in this group of decisions out of seven such appeals. Equally significant, the Commission based its unanimous decision not on evidence of political overtones or favoritism in the selection process, but on the lack of a reasonable investigation into the candidate's background. Specifically, the Commission found that the roundtable that recommended the bypass relied on erroneous negative information about the candidate and did not consider, as it was unaware of, highly favorable information about the candidate. The Commission ruled that the Boston Police Department should perform a reasonably thorough investigation before deciding whether or not to bypass the candidate.

In In re: Investigation of Selective Certification for Female Police Officers, the Commission determined that no further investigation was warranted into the Boston Police Department's use of selective certification for female candidates for original appointment. The investigation resulted from an appeal filed by a male candidate who was not reached for consider when the BPD used a selective gender certification in its March 2010 appointment process. [Full disclosure: the Law Office of Joseph L. Sulman represents the appellant in the underlying appeal.]  That appeal resulted in a decision last November 7, 2011 in Pugsley v. Boston Police Department, where the Commission found that the BPD and the Human Resources Division violated civil service law in the process used to request and approve the March 2010 selective gender certification. The Commission's investigation did not reach any findings concerning that specific appeal, but concluded that no further investigation was warranted into the selective gender certification process used by the BPD in general.

Commission denies four more bypass appeals

Last week, the Civi Service Commission issued decisions in four bypass cases, and not surprisingly, denying each appeal. The decisions are a reminder that bypass appeals present significant challenges and should not be filed without careful consideration. These appeals have a far lower likelihood of success compared to discipline appeals or other type of civil service appeals. The reason for this is the different standards applied by the Commission to the various types of appeal. 

In a bypass appeal, the Commission determines whether "reasonable justification" exists to justify the bypass. The Commission considers whether the bypass was based on "adequate reasons supported by credible evidence." This standard does not allow the Commission to second-guess the decision-making of the appointing authority. The Commission does not decide whether it would have made the same decision, but only if the appointing authority can justify its decision through factual evidence. Even if several of the justifications for a bypass are proven to lack support, the Commission will often uphold a bypass if one of the justifications passes muster.

The Commission applies a far stricter standard in discipline cases. In such appeals, the Commission must decide whether "just cause" exists for the discipline at issue. This standard requires the Commission to closely examine the reasons offered by the appointing authority for its decision. Often times, the Commission will modify the discipline or eliminate the discipline altogether if it does not find "just cause" exists for the particular form of discipline. 

The Massachusetts Supreme Judicial Court is expected to issue a decision soon in the Kaveleski v. City of Boston appeal that may result in a modification to the standard applied to a bypass appeal. Until this decision is issued, candidates who have been bypassed should assume that they will face an uphill battle in trying to win an appeal. 

Amesbury Fire violated civil service law in appointments

The Amesbury Fire Department violated the state's Civil Service Statute by making its deputy and assistant fire chief positions non-civil service appointments, the Civil Service Commission recently ruled in an appeal by 24 members of the Department.  The City, which adopted the civil service law in 1975, had not included the positions of deputy and assistant fire chief when it originally submitted its classification plan with the state's Human Resources Division. Those positions were added later to the Department but the classification plan was never updated with HRD, and thus those positions never officially became subject to the civil service law.

In defending its practice, the City argued that since the assistant and deputy fire chiefs performed duties similar to the chief - which is not a civil service position - then those position s were exempt from the civil service law. The Commission disagreed, however, ruling that the plain terms of M.G.L. c. 31, sec. 51 required that all positions in a civil service community other than the fire chief must be appointed according to the civil service law. The Commission ordered that the Amesbury officers holding the title of deputy and assistant fire chief have their positions changed to provisional and the City schedule a civil service examination for those positions.

Superior Court affirms Commission's decision on Methuen chief termination

The Superior Court affirmed the Civi Service Commission's decision from 2010 in which it overturned the City of Methuen's termination of Police Chief Joseph Solomon and ordered his reinstatement. The City challenged the decision on several grounds, arguing that the Commission overstepped its authority by substituting its judgment for that of the City and that, even if the Commission did not overstep its authority, the evidence did not support the Commission's decision. Judge Robert Cornetta of Essex Superior Court rejected each of the City's arguments in a 20-page decision.

On the issue of the Commission's authority, Judge Cornetta noted that the Commission's review of a termination decision differs substantively from its review of a bypass decision. In the latter case, the Commission's role is narrow and limited to determining whether "reasonable justification" supports the decision of the appointing authority. In a termination or discipline case, the Commission has a duty to determine whether "just cause" exists for the disciplinary action taken.

The Court also rejected the City's argument that the Commission failed to consider the countervailing evidence that undermined from its ultimate finding. The Court explained that the Commission is not required to recite all of the evidence and facts presented at the hearing in its decision, only such facts necessary for its decision. The Court explained that the City's argument overlooked the fact that the Commission received all of the evidence at the hearing, regardless of whether it expressly set forth all of the evidence in its decision.

It should be noted that Solomon's termination came after he had been suspended by the City. While the Commission ordered Solomon's reinstatement, it did not vacate his discipline entirely but rather modified the discipline from termination to a yearlong suspension, which Solomon had already served at the time of the decision in 2010. Solomon did not appeal the Commission's determination regarding the suspension and thus the Court's decision did not examine that issue.

Editor's note: Joseph Sulman represents Solomon in a federal lawsuit against the City arising out of the termination.

Commission clarifies definition of veteran status

The Civil Service Commission issued a decision last week in a dispute over whether an candidate who served 56 days in the military before being injured qualified for veteran status. The dispute centered around the definition of "veteran" under Massachusetts General Law Chapter 4, Section 7, which is incorporated in the Civil Service Law.  In general, Massachusetts law requires service of at least 90 days, one of which is during wartime, and discharge under honorable conditions to qualify as a veteran. An exception is provided, however, for service during wartime of less than 90 days when the servicemember is awarded a service-connected disability. In such instances, the servicemember is also considered a veteran. The candidate in question, after his service and injury, was discharged under the condition "uncharacterized." He was later awarded a disability benefit for his service and injury. The dispute in his appeal was whether the requirement to be discharged under honorable conditions also applied to the exception, which would have meant the appellant was not a veteran since his discharge was "uncharacterized."

The Commission ruled that the exception was an independent clause and did not include the "honorable conditions" requirement from earlier in the statute. Therefore, a servicemember who serves during wartime for less 90 days and is awarded a service-connected disability is, by definition, a veteran. The Commission ordered that the state modify the candidate's civil service status to reflect his veteran status.

It should be noted, however, that the definition of "veteran" specifically excludes anyone discharged under "dishonorable" conditions. The ruling has no effect on that statutory exclusion. There was no argument that the candidate was discharged under "dishonorable" conditions.

Commission denies challenge by veterans to special language certification

The Commission ruled last week that municipalities are permitted to consider and appoint candidates with special foreign language skills before considering candidates who are veterans, despite the statutory preference given to veterans by the civil service law. The appeal in Gaynor v. Boston Fire Department arose after the Boston Fire Department requested and received from the Commonwealth's Human Resources Division a "selective certification" of firefighter candidates with Spanish-language proficiency. The Fire Department invoked Personnel Administrative Rule .08(6), which authorizes the issuance of selective certifications for candidates with special qualifications. However, Section 26 of the civil service law expressly requires that disabled veterans and veterans appear first on any certification. The firefighters in Gaynor argued that the statutory preference given to veterans and disabled veterans  necessarily trumps the administrative rule giving preference to candidates on a selective certification. The Commission disagreed. According to the Commission, which ruled unanimously, candidates on a selective certification have a special skill that other candidates do not have, and thus such candidates are not being appointed over veterans who do not have this skill The Commission further denied the firefighters' argument that the Fire Department did not support its request for a foreign language certification with sufficient evidence of need.

Commission issues 19 decisions, ordering relief in one case

On April 19, the Civil Service Commission issued 17 decisions on pending cases. What is most noteworthy about the cases is that only one resulted in a decision in favor of the Appellant. That case involved the narrow issue of whether candidate satisfied the residency requirement in Boston for the position of firefighter. Many of the cases, though far from all, were bypass appeals that were denied. In this practitioner's opinion, this continues the trend seen in the past year or so of bypass appeals becoming harder to win. A case now on appeal before the Supreme Judicial Court, Kaveleski v. Boston Police Department, will likely provide clearer guidance on the appropriate standard of review in bypass cases, and possibly a more favorable standard for appellants.

One noteworthy aspect of the recent decisions was Commission Paul Stein's comments in Sherman v. Town of Randolph, G2-10-102, concerning the decision by the Human Resources Division in 2009 to delegate its functions with appointments and promotions of public safety personnel. Commissioner Stein noted that since the delegation, the Commission has experienced an increase in the number of direct inquiries it receives. He explained that problematic issues in bypass decisions that might have previously been cured by HRD before an appeal now are raised in appeals.

Commission decisions clarify reinstatement rights

Several recent decisions by the Commission help clarify the nature and extent of reinstatement rights enjoyed by civil service employees under Section 39 of Chapter 31. The first such decision was issued in October 2011 in Scheffen v. City of Lawrence, where laid off superior officers of the Lawrence Police Department claimed that their reinstatement rights had been violated when the City reinstated patrol officers with less seniority first. The Commission held that since appointing authority had discretion in deciding to manage its affairs and allocate limited funds, it could decide which vacancies to fill first, and in which department. Thus, the City could decide to fill vacant patrol officer positions, or any other position, before filling vacancies in the superior ranks formerly held by the appellants.

In Reardon v. City of Lawrence, the issue was slightly different (full disclosure: the appellant was represented by this writer). The City of Lawrence had demoted and simultaneously laid off the appellant from her position as Fire Lieutenant according to Section 39, and then, while she was still laid off, promoted still-employed firefighters to the rank of lieutenant. The City claimed that because the appellant had been laid off officially as a firefighter, after her demotion, her reinstatement rights only applied to her position as firefighter and thus she was not eligible for the lieutenant positions. The Commission disagreed, ruling that since the City had decided to fund and fill a vacancy in the lieutenant's rank in the fire department, and the appellant had been separated from her position as lieutenant at the same time she was laid off, the appellant had an entitlement to reinstatement to the vacancy ahead of any other person. The fact that she was laid off under the rank of "firefighter" did not change that, the demotion and layoff were simultaneous.

Most recently, in Jordan v. City of Lynn, the Commission addressed the reinstatement rights of a disabled retiree. The appellant had been promoted to lieutenant in 2004 but simultaneously demoted to firefighter for budgetary reasons. He then retired for cancer treatment in 2006. In 2009, he sought reinstatement, but was not put back in his former position until April 2010, one month after the City reinstated another firefighter. The Commission ruled that by reinstating the appellant after reinstating a non-disabled, non-retiree firefighter, the City violated paragraph 3 of Section 39, which gives highest reinstatement priority to disabled retirees. The Commission also addressed the more complicated question of whether and when the appellant should have been reinstated to lieutenant, but found the question more complicated than in Reardon. The key distinction between the two cases is that in Reardon, the demotion and lay-off occurred simultaneously and thus were considered as a single event, while in Jordan, the appellant's demotion from lieutenant to firefighter occurred several years before his retirement as firefighter and was thus considered a distinct event.  In examining this issue, the Commission noted that the appellant' reinstatement right to firefighter was first triggered in 2009, and had he been reinstated to firefighter at the time, he would have been eligible for reinstatement to his former position of lieutenant when a vacancy arose later that year. The Commission declined to rule that the appellant should have been reinstated to lieutenant at that time, however, since the question necessarily depended on whether a "vacancy" existed then. Under civil service law, appointing authorities are given wide discretion in determining when to fill a vacancy. Thus, the Commission ruled that the appellant's right to reinstatement to lieutenant was triggered only in 2010 after he was reinstated to his firefighter's position, and not in 2009.

Commission reaffirms appointing authority's authority to let certification expire

Candidates on a certification for civil service positions do not have an appeal right based on an appointing authority's decision, when based on budgetary or other valid grounds, to request a certification from a new eligibility list without making any appointments from an existing certification, the Commission ruled recently. The ruling came out of the appeals of three candidates for appointment to police officer in the Revere Police Department.  The candidates' opportunity for appointment expired when the City returned an August 2011 certification, on which they appeared, without making an appointment and requested a new certification in November 2011 from the new eligibility list on which none of the appellants' names appeared. Revere claimed that it returned the August 2011 list because it did not have sufficient time to review the candidates' backgrounds before October 31, 2011, which was the deadline to provide the names of appointed candidates to the Commonwealth's Human Resources Division.  Since the City returned the list for legitimate reasons and not to prejudice any of the individual appellants, no basis existed for the appeal, the Commission rued. "As a general rule, an appointing authority may decide, in the exercise of its sound discretion, to postpone or discontinue a hiring process for budgetary or other reasons."

Appeals court reverses and rebukes Commission

The Civil Service Commission engaged in "far-fetched fact finding" when it ignored the recommendation of a hearing officer and granted the appeal of a police officer candidate who had been bypassed for a lack of candor, according to a recent decision of the Massachusetts Appeals Court. In Town of Randolph v. Civil Service Commission, the Appeals Court found that the Commission overstepped its bounds when it ruled that Randolph had improperly bypassed Darren Woolf. Randolph bypassed Woolf for original appointment to the position of police officer, despite his being a decorated war veteran, for allegedly being less than forthcoming about a violation of an abuse prevention order in 1990. A magistrate originally found that the town had reasonable justification for the bypass, but the Commission, over the dissent of Chairman Christopher Bowman, upheld the appeal. By doing so, and engaging in "highly speculative conjecture" about what occurred in 1990, the Commission improperly substituted its judgment for that of the town, according to the Appeals Court decision.

Commission issues ruling on two out-of-grade appointment cases

On Tuesday, January 12, the Civil Service Commission decided two cases concerning out-of-grade "acting" promotional appointments. In both cases, Kelly v. City of Boston, and Gagnon v. City of Chicopee,  the Commission found that the appointing authorities had violated Chapter 31 in making out-of-grade appointments for more than 60 days, but had difficulty fashioning an appropriate remedy. In Kelly, the Commission found that City of Boston Fire Department violated Chapter 31 by using a "senior man" system to fill extended temporary vacancies, but denied the appellants relief because they were not able to show how they were personally injured from the practice since they were not at the top of the eligibility list.

In Gagnon, the Commission found that the City of Chicopee Fire Department violated Chapter 31 by having the appellant serve in a de facto out of grade position when performing the duties as Fire Lieutenant. The Commission was reluctant to place the appellant at the top of the next certification, as per the normal relief, due to the risk of injuring the rights of other candidates. The Commission therefore ordered the unusual relief of requiring that, in the event that the appellant becomes promoted through the normal certification process, he receive a retroactive seniority date equal to the number of days in which he served out of grade.

The decisions provide two useful reminders:

First, although not mentioned above, the Commission reiterated that an appointing authority is free not to appoint anyone from a certification, as long as the decision is based on legitimate economic reasons. In such a case, the appellant must show the economic justification is a pretext for personal bias. Second, appellants should be mindful that even if they prove a violation of Chapter 31 has occurred, the Commission may be reluctant to order a satisfying remedy if doing so unfairly affects the rights of other candidates.