Commission: Only HRD can remove names from eligility lists

In two decisions handed down last week, the Civil Service Commission clarified the procedure for removing a candidate's name from an eligibility list for a civil service position. In Radochia v. City of Somerville, the candidate appealed a bypass of his selection for a firefighter position as well as the removal of his name from all future certifications for the position. The Commission upheld the bypass decision, but ruled that the City overstepped its authority in deciding unilaterally to remove the candidate's name from all future certifications. The Commission ruled that if a municipality wants to remove a candidate permanently from consideration on all future certifications from an existing eligibility list, it must request and receive approval from the state's Human Resources Division, which waiss authorize to remove candidate's names under Personnel Administrative Rule 9 ("PAR.09). Equally important, the Commission clarified that the standard to justify a removal from an eligibility list is far more stringent than the reasonable justification standard for a bypass. The Commission explained:

"Thus, the PAR.09 removal process appears to be meant to apply only in exceptional circumstances -- e.g., felony convictions which are statutory disqualifiers for police officer candidates -- and is not intended to serve as a routine substitute for the established statutory process for bypassing a candidate in the next hiring cycle for the same legitimate, but judgmental, reasons established in the prior cycle, after due inquiry to confirm that there was no material changed in the relevant circumstances." 

The Commission also issued a decision, Carroll v. Town of Stoneham, in which it dismissed a candidate's bypass appeal as moot but also reaffirmed that it was HRD's responsibility, not the town's, to review and approve any request for a permanent removal from the eligibility list. 

State's highest court upholds Commission decision, reversing Superior Court decision that overturned Commission

The Supreme Judicial Court issued its highly-anticipated decision in Police Department of Boston v. Kaveleski today concerning the controversial issue of psychological bypasses, ruling that the Commission had acted within its discretion in finding that Boston failed to justify its psychological bypass of a candidate for police officer despite not having a psychological evaluation to counter the City's evaluation. The Commission overturned the bypass in 2009 by a 3-2 decision, finding that the opinions of the City's psychiatrists were subjective and based primarily on their impressions of the candidate's appearance and performance during the interviews rather than a finding of psychological unfitness. The decisions prompted a strong dissent from Chairman Christopher Bowman who argued that the Commission improperly substituted its opinion in place of the City's opinion.

The Superior Court overturned the Commission's decision, agreeing with Bowman that the Commission had exceeded its discretion in second-guessing the City's opinion regarding the candidate's fitness.

The SJC reversed the Superior Court decision, ruling that the Commission had acted within its discretion in rejecting the opinions offered by the City's psychiatrists despite not having any alternative expert opinion. The SJC agreed with the City that the Commission had improperly considered the testimony offered by experts in another bypass appeal, but ruled that the Commission's decision could be upheld even without considering this testimony.

I will provide more detailed analysis about the decision soon.

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.