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.
