Tuesday, October 28, 2014

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.