Sunday, April 8, 2012

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.

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