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.
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