Commissions orders investigation into make-up examination

On November 2, 2012, the Commission issued a decision in which it opened an investigation into a make-up examination given by the state's Human Resources Division for two vacant lieutenant positions in the Brockton Police Department.  HRD administered the make-up examination to two candidates who the Commission had earlier ruled had been mistakenly not allowed to take the original examination. These candidates scored higher on the make-up test than all the candidates who took the original examination. Subsequently, separate appeals were filed alleging that these two candidates had an unfair advantage because many of the same questions were used on the make-up test as on the original and these candidates had learned about the questions through various websites. The Commission scheduled a pre-hearing conference for the investigation for early December.

Commission issues 14 decisions, granting bypass appeal and ending investigation in selective certification

On October 18, 2012, the Civil Service Commission published 14 decisions on its website. Two of the decisions are particularly noteworthy. In Ortiz v. Boston Police Department, the Commission granted a bypass appeal to a candidate for original appointment as a Boston police officer. The decision is noteworthy because, as stated on this blog repeatedly, bypass appeals have become increasingly difficult to win. The Ortiz decision was the only bypass appeal granted by the Commission in this group of decisions out of seven such appeals. Equally significant, the Commission based its unanimous decision not on evidence of political overtones or favoritism in the selection process, but on the lack of a reasonable investigation into the candidate's background. Specifically, the Commission found that the roundtable that recommended the bypass relied on erroneous negative information about the candidate and did not consider, as it was unaware of, highly favorable information about the candidate. The Commission ruled that the Boston Police Department should perform a reasonably thorough investigation before deciding whether or not to bypass the candidate.

In In re: Investigation of Selective Certification for Female Police Officers, the Commission determined that no further investigation was warranted into the Boston Police Department's use of selective certification for female candidates for original appointment. The investigation resulted from an appeal filed by a male candidate who was not reached for consider when the BPD used a selective gender certification in its March 2010 appointment process. [Full disclosure: the Law Office of Joseph L. Sulman represents the appellant in the underlying appeal.]  That appeal resulted in a decision last November 7, 2011 in Pugsley v. Boston Police Department, where the Commission found that the BPD and the Human Resources Division violated civil service law in the process used to request and approve the March 2010 selective gender certification. The Commission's investigation did not reach any findings concerning that specific appeal, but concluded that no further investigation was warranted into the selective gender certification process used by the BPD in general.

Commission denies four more bypass appeals

Last week, the Civi Service Commission issued decisions in four bypass cases, and not surprisingly, denying each appeal. The decisions are a reminder that bypass appeals present significant challenges and should not be filed without careful consideration. These appeals have a far lower likelihood of success compared to discipline appeals or other type of civil service appeals. The reason for this is the different standards applied by the Commission to the various types of appeal. 

In a bypass appeal, the Commission determines whether "reasonable justification" exists to justify the bypass. The Commission considers whether the bypass was based on "adequate reasons supported by credible evidence." This standard does not allow the Commission to second-guess the decision-making of the appointing authority. The Commission does not decide whether it would have made the same decision, but only if the appointing authority can justify its decision through factual evidence. Even if several of the justifications for a bypass are proven to lack support, the Commission will often uphold a bypass if one of the justifications passes muster.

The Commission applies a far stricter standard in discipline cases. In such appeals, the Commission must decide whether "just cause" exists for the discipline at issue. This standard requires the Commission to closely examine the reasons offered by the appointing authority for its decision. Often times, the Commission will modify the discipline or eliminate the discipline altogether if it does not find "just cause" exists for the particular form of discipline. 

The Massachusetts Supreme Judicial Court is expected to issue a decision soon in the Kaveleski v. City of Boston appeal that may result in a modification to the standard applied to a bypass appeal. Until this decision is issued, candidates who have been bypassed should assume that they will face an uphill battle in trying to win an appeal. 

Amesbury Fire violated civil service law in appointments

The Amesbury Fire Department violated the state's Civil Service Statute by making its deputy and assistant fire chief positions non-civil service appointments, the Civil Service Commission recently ruled in an appeal by 24 members of the Department.  The City, which adopted the civil service law in 1975, had not included the positions of deputy and assistant fire chief when it originally submitted its classification plan with the state's Human Resources Division. Those positions were added later to the Department but the classification plan was never updated with HRD, and thus those positions never officially became subject to the civil service law.

In defending its practice, the City argued that since the assistant and deputy fire chiefs performed duties similar to the chief - which is not a civil service position - then those position s were exempt from the civil service law. The Commission disagreed, however, ruling that the plain terms of M.G.L. c. 31, sec. 51 required that all positions in a civil service community other than the fire chief must be appointed according to the civil service law. The Commission ordered that the Amesbury officers holding the title of deputy and assistant fire chief have their positions changed to provisional and the City schedule a civil service examination for those positions.

Superior Court affirms Commission's decision on Methuen chief termination

The Superior Court affirmed the Civi Service Commission's decision from 2010 in which it overturned the City of Methuen's termination of Police Chief Joseph Solomon and ordered his reinstatement. The City challenged the decision on several grounds, arguing that the Commission overstepped its authority by substituting its judgment for that of the City and that, even if the Commission did not overstep its authority, the evidence did not support the Commission's decision. Judge Robert Cornetta of Essex Superior Court rejected each of the City's arguments in a 20-page decision.

On the issue of the Commission's authority, Judge Cornetta noted that the Commission's review of a termination decision differs substantively from its review of a bypass decision. In the latter case, the Commission's role is narrow and limited to determining whether "reasonable justification" supports the decision of the appointing authority. In a termination or discipline case, the Commission has a duty to determine whether "just cause" exists for the disciplinary action taken.

The Court also rejected the City's argument that the Commission failed to consider the countervailing evidence that undermined from its ultimate finding. The Court explained that the Commission is not required to recite all of the evidence and facts presented at the hearing in its decision, only such facts necessary for its decision. The Court explained that the City's argument overlooked the fact that the Commission received all of the evidence at the hearing, regardless of whether it expressly set forth all of the evidence in its decision.

It should be noted that Solomon's termination came after he had been suspended by the City. While the Commission ordered Solomon's reinstatement, it did not vacate his discipline entirely but rather modified the discipline from termination to a yearlong suspension, which Solomon had already served at the time of the decision in 2010. Solomon did not appeal the Commission's determination regarding the suspension and thus the Court's decision did not examine that issue.

Editor's note: Joseph Sulman represents Solomon in a federal lawsuit against the City arising out of the termination.

Commission clarifies definition of veteran status

The Civil Service Commission issued a decision last week in a dispute over whether an candidate who served 56 days in the military before being injured qualified for veteran status. The dispute centered around the definition of "veteran" under Massachusetts General Law Chapter 4, Section 7, which is incorporated in the Civil Service Law.  In general, Massachusetts law requires service of at least 90 days, one of which is during wartime, and discharge under honorable conditions to qualify as a veteran. An exception is provided, however, for service during wartime of less than 90 days when the servicemember is awarded a service-connected disability. In such instances, the servicemember is also considered a veteran. The candidate in question, after his service and injury, was discharged under the condition "uncharacterized." He was later awarded a disability benefit for his service and injury. The dispute in his appeal was whether the requirement to be discharged under honorable conditions also applied to the exception, which would have meant the appellant was not a veteran since his discharge was "uncharacterized."

The Commission ruled that the exception was an independent clause and did not include the "honorable conditions" requirement from earlier in the statute. Therefore, a servicemember who serves during wartime for less 90 days and is awarded a service-connected disability is, by definition, a veteran. The Commission ordered that the state modify the candidate's civil service status to reflect his veteran status.

It should be noted, however, that the definition of "veteran" specifically excludes anyone discharged under "dishonorable" conditions. The ruling has no effect on that statutory exclusion. There was no argument that the candidate was discharged under "dishonorable" conditions.

Commission denies challenge by veterans to special language certification

The Commission ruled last week that municipalities are permitted to consider and appoint candidates with special foreign language skills before considering candidates who are veterans, despite the statutory preference given to veterans by the civil service law. The appeal in Gaynor v. Boston Fire Department arose after the Boston Fire Department requested and received from the Commonwealth's Human Resources Division a "selective certification" of firefighter candidates with Spanish-language proficiency. The Fire Department invoked Personnel Administrative Rule .08(6), which authorizes the issuance of selective certifications for candidates with special qualifications. However, Section 26 of the civil service law expressly requires that disabled veterans and veterans appear first on any certification. The firefighters in Gaynor argued that the statutory preference given to veterans and disabled veterans  necessarily trumps the administrative rule giving preference to candidates on a selective certification. The Commission disagreed. According to the Commission, which ruled unanimously, candidates on a selective certification have a special skill that other candidates do not have, and thus such candidates are not being appointed over veterans who do not have this skill The Commission further denied the firefighters' argument that the Fire Department did not support its request for a foreign language certification with sufficient evidence of need.