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.