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.

Commission issues 19 decisions, ordering relief in one case

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.

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.