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.