Monday, April 30, 2012

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.

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.

Sunday, April 1, 2012

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.