Monday, June 15, 2015

Provisional Promotions Cannot Last Indefinitely In Public Safety Positions

In a decision with far-reaching implications, the Civil Service Commission has ordered the Massachusetts Department of Corrections to stop making provisional promotions into the position of captain. The decision is the first time in years that the Commission has taken a firm stand on this widespread practice. In the case of the Department of Corrections (DOC), it always made provisional promotions to the rank of captain rather than hold a competitive examination and appoint from the results of the examination. Last December, a group of Lieutenants (the next lower grade below captain) asked the Commission to open an investigation into this practice, arguing that it violated civil service law. In a unanimous decision on May 28, 2015, the Commission agreed and granted the petitioner’s request to initiate an investigation.

The practice of making provisional appointments rather than appoint or promote from the results of the latest examination has become a widespread practice among civil service departments. The DOC argued that the process they used – limiting applicants to those with at least one year at Lieutenant, then scoring initial interviews, and convening second interviews for the top scorers – was fair and merit based. The Human Resources Division (HRD), the agency charged with administering examinations, argued that they did not have the money to create a test from scratch, and that instituting a test now would harm those who were provisionally appointed over the past thirty years.

The Commission has accepted these types of arguments regarding non-public safety appointments and promotions. While the statute only allows provisional appointments or promotions when there is no eligible list or if the list has less than three names on it (called a short list), such appointments/promotions have become the norm in non-public safety positions because it has been nearly twenty years since any test was offered. The Commission has instituted a set of rules that appointing authorities must follow when making provisional appointments/promotions to non-public safety positions (click here or call our office for details), but has declined to take sweeping action.

Thankfully, the Commission has now decided that public safety positions are different. Under the Commission’s decision, HRD and the DOC have until the end of August to propose effective and efficient solutions, but the requirement is clear: competitive examinations (or assessment centers) are required for public safety promotions. You can read the commission’s decision here.

This decision is also a helpful reminder that the Commission is authorized to open an investigation into allegations that basic merit principles and/or civil service laws are being violated. This power is expressly authorized under Section 2(a) of Chapter 31 and is in addition to the Commission’s authority under Section 2(b) of the statute to hear bypass appeals, discipline appeals, termination appeals, and classification appeals. If you believe that your department is violating basic merit principles and/or civil service laws, please call our office to see if we can help you request an investigation.