On April 19, the Civil Service Commission issued 17 decisions on pending cases. What is most noteworthy about the cases is that only one resulted in a decision in favor of the Appellant. That case involved the narrow issue of whether candidate satisfied the residency requirement in Boston for the position of firefighter. Many of the cases, though far from all, were bypass appeals that were denied. In this practitioner's opinion, this continues the trend seen in the past year or so of bypass appeals becoming harder to win. A case now on appeal before the Supreme Judicial Court, Kaveleski v. Boston Police Department, will likely provide clearer guidance on the appropriate standard of review in bypass cases, and possibly a more favorable standard for appellants.
One noteworthy aspect of the recent decisions was Commission Paul Stein's comments in Sherman v. Town of Randolph, G2-10-102, concerning the decision by the Human Resources Division in 2009 to delegate its functions with appointments and promotions of public safety personnel. Commissioner Stein noted that since the delegation, the Commission has experienced an increase in the number of direct inquiries it receives. He explained that problematic issues in bypass decisions that might have previously been cured by HRD before an appeal now are raised in appeals.
Monday, April 30, 2012
Sunday, April 8, 2012
Commission decisions clarify reinstatement rights
Several recent decisions by the Commission help clarify the nature and extent of reinstatement rights enjoyed by civil service employees under Section 39 of Chapter 31. The first such decision was issued in October 2011 in Scheffen v. City of Lawrence, where laid off superior officers of the Lawrence Police Department claimed that their reinstatement rights had been violated when the City reinstated patrol officers with less seniority first. The Commission held that since appointing authority had discretion in deciding to manage its affairs and allocate limited funds, it could decide which vacancies to fill first, and in which department. Thus, the City could decide to fill vacant patrol officer positions, or any other position, before filling vacancies in the superior ranks formerly held by the appellants.
In Reardon v. City of Lawrence, the issue was slightly different (full disclosure: the appellant was represented by this writer). The City of Lawrence had demoted and simultaneously laid off the appellant from her position as Fire Lieutenant according to Section 39, and then, while she was still laid off, promoted still-employed firefighters to the rank of lieutenant. The City claimed that because the appellant had been laid off officially as a firefighter, after her demotion, her reinstatement rights only applied to her position as firefighter and thus she was not eligible for the lieutenant positions. The Commission disagreed, ruling that since the City had decided to fund and fill a vacancy in the lieutenant's rank in the fire department, and the appellant had been separated from her position as lieutenant at the same time she was laid off, the appellant had an entitlement to reinstatement to the vacancy ahead of any other person. The fact that she was laid off under the rank of "firefighter" did not change that, the demotion and layoff were simultaneous.
Most recently, in Jordan v. City of Lynn, the Commission addressed the reinstatement rights of a disabled retiree. The appellant had been promoted to lieutenant in 2004 but simultaneously demoted to firefighter for budgetary reasons. He then retired for cancer treatment in 2006. In 2009, he sought reinstatement, but was not put back in his former position until April 2010, one month after the City reinstated another firefighter. The Commission ruled that by reinstating the appellant after reinstating a non-disabled, non-retiree firefighter, the City violated paragraph 3 of Section 39, which gives highest reinstatement priority to disabled retirees. The Commission also addressed the more complicated question of whether and when the appellant should have been reinstated to lieutenant, but found the question more complicated than in Reardon. The key distinction between the two cases is that in Reardon, the demotion and lay-off occurred simultaneously and thus were considered as a single event, while in Jordan, the appellant's demotion from lieutenant to firefighter occurred several years before his retirement as firefighter and was thus considered a distinct event. In examining this issue, the Commission noted that the appellant' reinstatement right to firefighter was first triggered in 2009, and had he been reinstated to firefighter at the time, he would have been eligible for reinstatement to his former position of lieutenant when a vacancy arose later that year. The Commission declined to rule that the appellant should have been reinstated to lieutenant at that time, however, since the question necessarily depended on whether a "vacancy" existed then. Under civil service law, appointing authorities are given wide discretion in determining when to fill a vacancy. Thus, the Commission ruled that the appellant's right to reinstatement to lieutenant was triggered only in 2010 after he was reinstated to his firefighter's position, and not in 2009.
In Reardon v. City of Lawrence, the issue was slightly different (full disclosure: the appellant was represented by this writer). The City of Lawrence had demoted and simultaneously laid off the appellant from her position as Fire Lieutenant according to Section 39, and then, while she was still laid off, promoted still-employed firefighters to the rank of lieutenant. The City claimed that because the appellant had been laid off officially as a firefighter, after her demotion, her reinstatement rights only applied to her position as firefighter and thus she was not eligible for the lieutenant positions. The Commission disagreed, ruling that since the City had decided to fund and fill a vacancy in the lieutenant's rank in the fire department, and the appellant had been separated from her position as lieutenant at the same time she was laid off, the appellant had an entitlement to reinstatement to the vacancy ahead of any other person. The fact that she was laid off under the rank of "firefighter" did not change that, the demotion and layoff were simultaneous.
Most recently, in Jordan v. City of Lynn, the Commission addressed the reinstatement rights of a disabled retiree. The appellant had been promoted to lieutenant in 2004 but simultaneously demoted to firefighter for budgetary reasons. He then retired for cancer treatment in 2006. In 2009, he sought reinstatement, but was not put back in his former position until April 2010, one month after the City reinstated another firefighter. The Commission ruled that by reinstating the appellant after reinstating a non-disabled, non-retiree firefighter, the City violated paragraph 3 of Section 39, which gives highest reinstatement priority to disabled retirees. The Commission also addressed the more complicated question of whether and when the appellant should have been reinstated to lieutenant, but found the question more complicated than in Reardon. The key distinction between the two cases is that in Reardon, the demotion and lay-off occurred simultaneously and thus were considered as a single event, while in Jordan, the appellant's demotion from lieutenant to firefighter occurred several years before his retirement as firefighter and was thus considered a distinct event. In examining this issue, the Commission noted that the appellant' reinstatement right to firefighter was first triggered in 2009, and had he been reinstated to firefighter at the time, he would have been eligible for reinstatement to his former position of lieutenant when a vacancy arose later that year. The Commission declined to rule that the appellant should have been reinstated to lieutenant at that time, however, since the question necessarily depended on whether a "vacancy" existed then. Under civil service law, appointing authorities are given wide discretion in determining when to fill a vacancy. Thus, the Commission ruled that the appellant's right to reinstatement to lieutenant was triggered only in 2010 after he was reinstated to his firefighter's position, and not in 2009.
Sunday, April 1, 2012
Commission reaffirms appointing authority's authority to let certification expire
Candidates on a certification for civil service positions do not have an appeal right based on an appointing authority's decision, when based on budgetary or other valid grounds, to request a certification from a new eligibility list without making any appointments from an existing certification, the Commission ruled recently. The ruling came out of the appeals of three candidates for appointment to police officer in the Revere Police Department. The candidates' opportunity for appointment expired when the City returned an August 2011 certification, on which they appeared, without making an appointment and requested a new certification in November 2011 from the new eligibility list on which none of the appellants' names appeared. Revere claimed that it returned the August 2011 list because it did not have sufficient time to review the candidates' backgrounds before October 31, 2011, which was the deadline to provide the names of appointed candidates to the Commonwealth's Human Resources Division. Since the City returned the list for legitimate reasons and not to prejudice any of the individual appellants, no basis existed for the appeal, the Commission rued. "As a general rule, an appointing authority may decide, in the exercise of its sound discretion, to postpone or discontinue a hiring process for budgetary or other reasons."
Appeals court reverses and rebukes Commission
The Civil Service Commission engaged in "far-fetched fact finding" when it ignored the recommendation of a hearing officer and granted the appeal of a police officer candidate who had been bypassed for a lack of candor, according to a recent decision of the Massachusetts Appeals Court. In Town of Randolph v. Civil Service Commission, the Appeals Court found that the Commission overstepped its bounds when it ruled that Randolph had improperly bypassed Darren Woolf. Randolph bypassed Woolf for original appointment to the position of police officer, despite his being a decorated war veteran, for allegedly being less than forthcoming about a violation of an abuse prevention order in 1990. A magistrate originally found that the town had reasonable justification for the bypass, but the Commission, over the dissent of Chairman Christopher Bowman, upheld the appeal. By doing so, and engaging in "highly speculative conjecture" about what occurred in 1990, the Commission improperly substituted its judgment for that of the town, according to the Appeals Court decision.
Wednesday, January 18, 2012
Commission issues ruling on two out-of-grade appointment cases
On Tuesday, January 12, the Civil Service Commission decided two cases concerning out-of-grade "acting" promotional appointments. In both cases, Kelly v. City of Boston, and Gagnon v. City of Chicopee, the Commission found that the appointing authorities had violated Chapter 31 in making out-of-grade appointments for more than 60 days, but had difficulty fashioning an appropriate remedy. In Kelly, the Commission found that City of Boston Fire Department violated Chapter 31 by using a "senior man" system to fill extended temporary vacancies, but denied the appellants relief because they were not able to show how they were personally injured from the practice since they were not at the top of the eligibility list.
In Gagnon, the Commission found that the City of Chicopee Fire Department violated Chapter 31 by having the appellant serve in a de facto out of grade position when performing the duties as Fire Lieutenant. The Commission was reluctant to place the appellant at the top of the next certification, as per the normal relief, due to the risk of injuring the rights of other candidates. The Commission therefore ordered the unusual relief of requiring that, in the event that the appellant becomes promoted through the normal certification process, he receive a retroactive seniority date equal to the number of days in which he served out of grade.
The decisions provide two useful reminders:
First, although not mentioned above, the Commission reiterated that an appointing authority is free not to appoint anyone from a certification, as long as the decision is based on legitimate economic reasons. In such a case, the appellant must show the economic justification is a pretext for personal bias. Second, appellants should be mindful that even if they prove a violation of Chapter 31 has occurred, the Commission may be reluctant to order a satisfying remedy if doing so unfairly affects the rights of other candidates.
In Gagnon, the Commission found that the City of Chicopee Fire Department violated Chapter 31 by having the appellant serve in a de facto out of grade position when performing the duties as Fire Lieutenant. The Commission was reluctant to place the appellant at the top of the next certification, as per the normal relief, due to the risk of injuring the rights of other candidates. The Commission therefore ordered the unusual relief of requiring that, in the event that the appellant becomes promoted through the normal certification process, he receive a retroactive seniority date equal to the number of days in which he served out of grade.
The decisions provide two useful reminders:
First, although not mentioned above, the Commission reiterated that an appointing authority is free not to appoint anyone from a certification, as long as the decision is based on legitimate economic reasons. In such a case, the appellant must show the economic justification is a pretext for personal bias. Second, appellants should be mindful that even if they prove a violation of Chapter 31 has occurred, the Commission may be reluctant to order a satisfying remedy if doing so unfairly affects the rights of other candidates.
Wednesday, November 30, 2011
Commission orders investigation into Boston's use of special certifications for female police officers
The Commission has initiated an investigation into the process used by the Boston Police Department, with the approval of the Human Resources Division, to appoint female police officer candidates using special certifications. The Commission ordered the investigation following the appeal in Pugsley v. City of Boston et al., No. E-10-334. (Full disclosure: I represent the appellant in this appeal.) Pugsley alleged that Boston's request for a gender-specific certification in 2010 and HRD's approval of the request violated Chapter 31 and caused him to lose the opportunity for appointment to the Boston Police Academy class. The procedure used by Boston is called "special certification" and allows an appointing authority to request a certification of candidates with special qualifications for a given position. For example, appointing authorities will use special certifications to appoint candidates with foreign language skills.
The Commission ruled that HRD's approval of Boston's special certification did not comply with Chapter 31 or with the standard practice and procedure of HRD. Notably, the Commission found Boston's hiring process for the December 2010 Police Academy to be "seriously flawed." While noting several deficiencies in the process, the Commission highlighted the fact that Chapter 31 requires HRD to submit any request for a gender special certification to the Commission Against Discrimination, which HRD acknowledged it did not do.
The Commission ordered HRD to provide copies of all requests for gender special certifications dating back to 2001, along with other information concerning the hiring process for the December 2010 Boston Police Academy class. A hearing on the investigation is scheduled for February 17, 2012. The Commission stayed the actual appeal filed by Pugsley for the time being.
The Commission ruled that HRD's approval of Boston's special certification did not comply with Chapter 31 or with the standard practice and procedure of HRD. Notably, the Commission found Boston's hiring process for the December 2010 Police Academy to be "seriously flawed." While noting several deficiencies in the process, the Commission highlighted the fact that Chapter 31 requires HRD to submit any request for a gender special certification to the Commission Against Discrimination, which HRD acknowledged it did not do.
The Commission ordered HRD to provide copies of all requests for gender special certifications dating back to 2001, along with other information concerning the hiring process for the December 2010 Boston Police Academy class. A hearing on the investigation is scheduled for February 17, 2012. The Commission stayed the actual appeal filed by Pugsley for the time being.
Commission grants Section 40 transfers to former Boston Municipal Police Department officers
In a decision stemming from the abolishment of the Boston Municipal Police Department ("BPMD") in 2007, the Commission has ordered the Human Resources Division to accept transfer requests under Section 40 of Chapter 31 from 27 former officers of BPMD to the Boston Police Department. The decision, Twenty-Seven Former Boston Municipal Police Officers, Sergeants and Lieutenants v. Boston Police Department, Nos. D1-07-05 - D1-07-31, was issued after a ruling by the Massachusetts Appeals Court that found sufficient evidence to permit a finding that there had been a "transfer of functions" within the meaning of Section 40 from the BPMD to the Boston Police Department. Following the Appeals Court decision, the Commission further reviewed the evidence and determined that a "significant and material"portion of functions had been transferred from the BPMD to the Boston Police Department. However, the Commission found a lack of evidence that the supervisory functions of the BPMD were transferred to the Boston Police Department. Therefore, the Commission limited its ruling to allowing the appellants to request transfers to officer positions only, regardless of whether they had been superior officers with the BPMD.
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