Saturday, September 1, 2012
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.