Commission grants bypass appeal (and hell doesn't freeze over)

For the past several years, the Civil Service Commission has granted bypass appeals only when it has found that cronyism affected the selection process or, in a rarer circumstance, that the investigation into the bypassed candidate by the appointing authority was clearly insufficient. This month, however, the Commission  granted the appeal of a bypassed Braintree police candidate based on the lack of a reasonable justification for the decision. In Morris v. Braintree Police Department, the City of Braintree bypassed a black candidate in favor of five white candidates based primarily on his interview performance. Mr. Morris had interviewed twice for appointment and both times not selected based on his interview, although the first non-appointment was not a bypass since no one lower than him was apparently appointed. The Commission found that Mr. Morris's bypass resulted from an unfairly subjective review of his two interviews and granted the appeal.

As the Commission found, the interview panel did not take notes or score either interview based on a uniform criteria, but discussed Mr. Morris's performance weeks after the interviews to arrive at a uniform assessment. Moreover, the Commission, which had an audio recording of each interview, found that many of the observations by the panel about Mr. Morris's performance were simply wrong. The Commission also faulted Braintree for focusing solely on its subjective assessment of Mr. Morris's interview performance when it also had objective evidence of his long, unblemished career in law enforcement. In this regard, the Commission found that the bypass was not the result of the required "thorough review" needed to support a bypass decision.

The Morris decision is an encouraging development for bypassed civil service candidates. Far too many candidates, in this attorney's experience, are bypassed based on subjective assessments from interviews and background investigations. Hopefully this decision indicates that the Commission is prepared to scrutinize bypass decisions when based on such subjective assessments more carefully going forward. 

In Case You Need A Reminder, Cronyism Is Bad

If there is one hiring issue that the Civil Service Commission has been consistent on in recent years, it is that familial ties cannot play any role in the appointment process. Two decisions issued by the Commission last wek show that some police chiefs are still not getting the message somehow. In one case, Minoie v. Town of Braintree, the police chief personally wrote to the Human Resources Division asking for three candidates to be removed from the eligibility list even though his son was below these candidates on the list. The Commission upheld the removal of one of the candidate's from the list based on his untruthfulness, but then instructed the City to show why an investigation should not be opened into the Chief's participation in the hiring process. In a second case, Investigation: City of Newburyport Reserve Police Officer Appointments, the police chief's son was appointed due to having received a residency preference without any proof supporting the preference. The Commission noted that the chief did not inform the appointing authority about the conflict of interest during the hiring process, but simply delegated to subordinates the task of assessing his son's candidacy. An investigation ordered by the Commission revealed that the chief's son did not, in fact, have a residency preference, and as a result the son resigned.

In both cases, the Commission noted that changes to the hiring practice was needed for the department. Perhaps equally notable, however, is that as Minoie shows, a flawed hiring practice will not save an otherwise unqualified candidate. If there are sufficient independent grounds for a candidate to be bypassed or removed from an eligibility list, the fact that cronyism was also involved will not save the candidate.

CORI/BOP/CJIS Hit Alone Cannot Justify A Bypass

Certain things can automatically justify a bypass, such as a felony conviction for example. You can now strike “an arrest” from that list. Following a clear trend over the past two years, the Commission held in Gore v. DOC, G1-13-272, that a report of an arrest on a BOP (Board of Parole) report, a CORI (Criminal Offender Record Inquiry) check, or a CJIS (Criminal Justice Information System) check cannot automatically disqualify a candidate from the appointment process. Instead, appointing authorities are required to conduct a “reasonably thorough review” of the facts and circumstances of the arrest. 

In Gore, the appellant had been arrested for carrying a firearm without a license. The charge was later dismissed. The arrest was uncovered during the DOC’s background investigation on a CJIS report and Gore was removed from the process and subsequently bypassed. The Commission, pointing to the DOC’s failure to conduct a review of what happened or even notify Mr. Gore about the report, granted the appeal and placed Mr. Gore at the top of the list until he is appointed or bypassed. 

While this is good news for individuals bringing appeals, it should not be over-read. This does not mean that an arrest cannot justify a bypass. It can, even if it doesn’t lead to a conviction. What an arrest cannot do is allow an appointing authority to automatically disqualify a candidate without looking into the matter further.

Commission's Authority To Overturn Bypasses Still Alive and Kicking

While the Civil Service Commission often seems overly reluctant to overturn even the most questionable bypass decision, its authority to grant an appeal of a bypass is not dead yet. The Middlesex Superior Court recently ruled in City of Malden v. Civil Service Commission that reasonable justification for a bypass requires more than “take our word for it.” The decision, which upheld one of the rare instances when the Commission granted a bypass appeal, reinforces the established principal that appointing authorities must provide credible evidence to support the reasons listed in the bypass letter.

The City of Malden issued a bypass letter to the top ranked candidate on their requisition for firefighter in 2013. The letter offered three reasons to justify the bypass: (1) the candidate’s inability to answer the most basic questions; (2) the candidate’s below average evaluation by the panel due to an overall poor performance; and (3) the candidate’s questionable driving record. However, Malden failed to identify any particular question that the appellant was unable to answer, did not produce any notes from his interview, and even failed to produce the appellant’s driving record. The Court wrote that the Commission was not required “to accept generalized statements that [the Appellant’s] responses were inadequate without proof, where proof (or written disproof) did exist at one time.”

It remains true that an appointing authority retains broad discretion in the hiring process. If they are able to produce credible evidence to support a reasonable justification, they will be entitled to bypass a candidate in favor of another one lower ranked. However, “because I say so” does not qualify as credible evidence. If an appointing authority's justification lacks support or common sense, or results from an incomplete investigation, an individual can still prevail on appeal.

Judge Says HRD Must Review and Approve Bypass Reasons

This blog has previously drawn attention to under-staffing problems at HRD. If a February decision in Superior Court stands, the problem could get much worse. Over the past decade or so HRD has tried to address a budget crunch by delegating some of its responsibilities to cities and towns across the Commonwealth. One of these responsibilities that HRD has delegated is the authority to “receive” the written statement of reasons for a bypass.

Under Chapter 31, in order to bypass a candidate, an appointing authority must file with HRD a written statement of reasons for making a selection out of rank order. Civil service law states that a bypass is only effective only HRD receives this notice. In Mallloch v. Clarkson et al. the Superior Court determined that the word “receive” meant more than simply accepting the written statement, and instead required a substantive review and approval of those reasons. It followed that if a substantive review and approval was required, HRD could not delegate to an appointing authority the power to review and approve itself. The decision has been appealed, but if upheld it will have real consequences on how civil service appointments are made going forward. Check back here for updates as the appeal goes forward. This is one to watch.

HRD under-staffing hurting candidatse

A recent Civil Service Commission decision has highlighted how persistent understaffing at the Human Resources Division's Civil Service Unit negatively affects civil service candidates and employees. Sarah Fisher, a candidate for appointment to firefighter in Chicopee, took the firefighter's examination in April 2010 but could not take the Physical Ability Test scheduled for that August due to her pregnancy. In the meantime, Chicopee requested and received a certification for original appointment in March 2011, and Ms. Fisher's name did not appear on the certification because she had not taken the PAT. In July 2011, after she gave birth, Ms. Fisher made repeated request to HRD to reschedule her PAT. HRD never responded. Eventually, after she had a legislator contact HRD, the agency arranged for her PAT in April 2012. After passing the PAT, her name was added to the certification from the 2010 exam, but by that time Chicopee had already made its appointments from the list.

Ms. Fisher lost her appeal in part because her overall score after taking the PAT would not have placed her within the 2n+1 range of candidates who could have been considered for appointment, so she was not technically "aggrieved" under Chapter 31. However, her ordeal highlights an increasingly reported issue about HRD not being able to respond to questions and concerns of individual candidates and civil service employees. The understaffing at the Civil Service Unit has been well known for sometime. It is apparent that the understaffing affects the rights of individual candidates to equal and fair consideration in appointments. This problem is especially problematic when it implicates rights enjoyed by pregnant candidates, since this raises concerns that HRD's understaffing has a disproportionately negative effect on women.  

2013 statistics show majority of bypass appeals get results

The Civil Service Commission issued its 2013 Year End Statistics last month and the data indicates reason for optimism, at least as far as bypass appeals go. In 2013, 48 percent of bypass appeals cases ended in the bypass being upheld. Out of the remaining 52 percent, 41 percent ended with the Commission granting relief based on mutual agreement, and 11 percent ended in the Commission granting the appeal and ruling that the bypass was invalid.

It may seem discouraging that only 11 percent of the appeals received a final decision in favor of the appellant (i.e. the bypassed candidate). But that's misleading; when the Commission grants relief based on mutual decision, as it did in 41 percent of the cases last year, the result is usually the same as a successful appeal - the bypassed candidate is placed at the top of the certification for appointment or promotion. So while the appellant does not have the satisfaction of a decision ruling that the bypass was not justified, the effect is the same.

In my practice, many of my clients receive relief through mutual agreement. It saves both the client and the appointing authority time and money, and it usually means that the client has a good case and would probably win the appeal if it went to a full decision.

Back after brief hiatus

Due to several factors, primarily an increasingly busy practice, I've been unable to post to this blog over the last several months. So I will be increasing my activity for the next several months to try to make up for it. Call it a delayed New Years resolution.