Superior Court reverses Commission decision

In 2010, the Civil Service Commission upheld a psychological bypass of a candidate for the Boston Police Department under unusual circumstances. In a 3-2 decision, a majority of the Commission voted to uphold the bypass, yet they also accepted the factual findings made by Commissioner Daniel Henderson, who served as the hearing officer and voted to grant the appeal and overturn the bypass. Now a Superior Court judge has reversed that decision and overturned the bypass because the Commission did not sufficiently explain why it reached an opposite conclusion from Henderson while accepting his findings. The Superior Court ruled that since the Commission rejected the conclusions of the hearing officer, its substituted conclusion must be supported by substantial evidence. The Court ruled that the accepted factual findings could not support the bypass, and thus the conclusion required new findings of fact. As none were made, the Commission's decision was reversed.

Commission issues seven bypass decisions: seven appeals dismissed

Continuing the trend of upholding bypass appeals except under the most compelling circumstance, the Civil Service Commission issued decisions in seven bypass appeals last week and denied each appeal. None of the decisions are particularly remarkable (full disclosure: I represented two of the appellants), but it should be a reminder to civil service applicants that it has become extremely challenging to overturn a bypass. As I wrote a couple months ago, the rate of success for appeals that go to a full hearing is only 10%.

Year to date statistics published by the Commission

It's been clear for sometime now that appellants do not stand a good chance of winning a bypass appeal at the Civil Service Commission, and recent statistics published by the Commission confirm this. At the beginning of this month, the Commission published statistics on its caseload to date for the year, including information on the number of successful appeals. The results are not encouraging. So far in 2013, only ten percent (10%) of appeals challenging bypasses have been successful. This does not include those cases where the appointing authority and the candidate agreed to relief based on a mutual decision, which count for 40% of appeals. Out of the 29 cases that have gone to a full hearing and been decided by the Commission, only five (5) have resulted in victories for the appellant.

This continues a downward trend for civil service candidates appealing bypass decisions. The numbers are stark. Since 2007, the percentage of bypass appeals that succeeded and resulted in relief being granted by the Commission is as follows:

2007 - 10% 

2008 - 27%

2009 - 27%

2010 - 25%

2011 - 14%

2012 - 15%

2013 YTD - 10%

The years 2008 through 2010 stand out. What happened in those years that caused the Commission to grant such a larger percentage of bypass appeals? It's a combination of factors. First, the makeup of the Commission has changed, and commissioners who were more likely to vote in favor of an appeal have left. But more significantly, a number of decisions by the Commission granting bypass appeals were overturned by the Superior Court, generally on the basis that the Commission did not have the authority to second-guess the decision-making of appointing authorities. The statistics show that out of all 2008 decisions that were appealed, 35% were overturned, and for 2009 decisions that were appealed, the reversals increased to 38%. As a result, the Commission became more deferential to the decision-making of appointing authorities and now only grant bypasses (broadly speaking) when there is strong evidence of improper bypass, favoritism, or that the bypass resulted from a clearly unreasonable investigation into the candidate. It is probably not coincidental that of the 2010 and 2011 decisions that were appealed, the reversals dropped to 17% and 18%, respectively.

Psychological bypass overturned

In one of the first Civil Service Commission decisions concerning a psychological bypass after the landmark Kaveleski decision by the Supreme Judicial Court, the Commission voted unanimously to grant the appeal of a candidate to the Boston Police Department who had been bypassed as a result of a psychological evaluation. The decision is notable for being unanimous, unlike many decisions regarding psychological bypasses before Kaveleski. The Commission faulted the evaluator for basing his findings on "subjective impressions on the candidate's past conduct that the BPD already knew about and found not to be disqualifying" (emphasis in original), a finding that may be critical when applied to future appeals. It is also notable that, although the Appellant retained an expert to offer competing opinion about his psychological fitness, the Commission did not mention the Appellant's expert in explaining its ruling, instead focusing on the deficiencies in the City's expert's opinion.

In Civil Service Commission appeals, tie goes to the winner

There's an unwritten rule in baseball that in a race to the base, if the ball and the runner arrive at the same time, the tie goes to the runner (apparently, it's not actually a rule, as you'll see by the previous link, but it's a useful analogy). There's a similar rule now for the Civil Service Commission. On July 1, the Supreme Judicial Court decided that when the Commission voted two to two on the issue of whether to affirm a decision by a hearing officer at the Division of Administrative Law Appeals ("DALA"), the effect was to affirm the hearing officer's ruling and make it the final decision of the Commission.

The case arose out of the appeal by two employees at the Department of Corrections regarding their termination. The hearing officer at DALA ruled against the employees, affirming the termination. After the Commission, which did not have a fifth member at the time, split in its review of the decision, the Superior Court ruled on appeal that the tie vote meant that the appeal had been dismissed. If this became law, it would mean that a tie vote by the Commission would make the findings of the DALA hearing officer irrelevant on appeal. Since the SJC ruled otherwise, a tie vote now means that the DALA decision becomes the final decision of the Commission and subject to judicial review on appeal.

Superior Court upholds Commission decision that employee cannot be disciplined for failing to testify at disciplinary hearing

The Civil Service Commission published a decision this week by the Superior Court affirming the Commission's ruling that a civil service employee cannot be disciplined for refusing to testify at his or her own disciplinary hearing. The decision in City of Worcester v. Civil Service Commission and Dykstra was actually issued in July 2012, but for unknown reason was only published this week on the Commission's website.

The Superior Court in Dykstra agreed with the Commission that the employee could choose whether or not to testify at his own hearing, and Worcester's policy requiring its employees to testify could not be enforced to discipline the employee further for refusing to testify. The Court agreed with the Commission's reasoning that Section 41 disciplinary hearings are intended to protect an employee's due process rights and not serve as an investigatory tool for an appointing authority.

Despite the ruling, civil service employees facing Section 41 hearings should still carefully consider whether or not to testify in their defense. The Superior Court found that the hearing officer could draw a negative inference from the employee's refusal to testify.

Appeals Court, once again, upholds Commission decision

Following a familiar pattern, a civil service employee upset with a ruling by the Civil Service Commission – in this case, the denial of his appeal of a one-year suspension - struck out with his second appeal of the decision. The decision by the Massachusetts Appeals Court in Schiavone v. City of Medford is not remarkable except as another reminder that employees who lose at the Commission should think long and hard before appealing the decision.

In this case, the City of Medford suspended the employee based on a finding that he violated the City's sexual harassment policy. The Appeals Court agreed with the Superior Court (which is the first level of appellate review for the Commission) that the decision to uphold the year-long suspension was "legally tenable" based on the substantial evidence. (The original decision and findings were made by a magistrate judge. The Commission reviewed and accepted the magistrate's findings.)

I always tell my clients who have received an unfavorable Civil Service Commission decision and want to appeal that the standard of review typically makes the chances of success very unlikely. In the rare circumstance that an appeal challenges the legal basis for the Commission's decision, the standard is more favorable because it requires a fresh look at the legal reasoning. This is what happened in the Kaveleski decision, which clarified the standard for the Commission to apply to appeals of psychological bypasses.  A court, however, does not take a fresh look at factual findings by the Commission.  This is important to remember when considering whether to appeal an unfavorable decision by the Civil Service Commission.

Commissions rules on Boston police drug testing appeal

The Civil Service Commission issued a ruling on February 28, 2013 in a decade-old dispute regarding Boston Police Department drug testing. The case, In re Boston Police Department Drug Testing Appeals, was brought by ten Boston police officers who had been discharged after hair samples tested positive for illegal drugs. The consolidated hearing of these appeals was postponed while the officers  focused on a federal lawsuit regarding the same issue. The Commission finally held hearings on the appeals from October 21, 2010 to February 4, 2011.

In a sweeping 134-page opinion, the Commission affirmed the BPD's authority under basic merit principles of the civil service law to use hair samples to determine whether an officer had ingested illegal drugs. However, the Commission also ruled that a positive test result may not be conclusive, and depending on the evidence in a particular case, may or may not justify termination or other discipline under the just cause standard.

Under these principles, the Commission affirmed the termination of four of the officers in the consolidated appeals and allowed in part the appeals of the six other officers as the evidence did not establish just cause for their termination.