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.