Friday, February 19, 2016

Stop! Or I’ll Say Stop Again!

The Commission has made its position clear when it comes to provisional appointments and provisional promotions in non-public safety positions. In short -- they aren’t getting involved. For examples click here, here, or here. However, as it likes to remind us, the Commission has the power to open up an investigation pursuant to M.G.L c. 31 §2(a) when it receives allegations that an appointment process was not consistent with “basic merit principles.” In Palluccio v. DOR, the Commission found that the DOR deviated from its own self-imposed appointment process and stopped ranking and scoring interviews. Although the Commission chose not to open an investigation, it did put the DOR on notice that going forward, the DOR would need “to comply with its own internal practices regarding appointments including, but not limited to, the use of an acceptable scoring and ranking process.”

One year later, an appeal brought by Karen O’Connor-Powers revealed that the DOR hadn’t received the message; it was still using an informal “consensus” rating process as opposed to a tally sheet and rating system. However, instead of opening up an investigation, the Commission simply expressed “dismay” and threatened that it may open an investigation “in the future” if the DOR continues to ignore the Commission’s directive in Palluccio. What isn’t clear is exactly how long the DOR will be allowed to ignore Commission instruction. It is clear that the Commission would be on firm ground to stop the DOR. The Supreme Judicial Court recently commented that procedures like the DORs, conducive to “subjective or arbitrary decision making could be a ‘red flag’ signaling that a bypass decision resulting from the flawed procedures was motivated by political considerations, favoritism, or bias.” Sherman v. Randolph, 472 Mass. 802, 812 (2015). It is time for the Commission to stop warning, and start acting to put the DOR’s subjective appointment process to an end. You can find a copy of the O’Connor-Powers decision here.