Massachusetts Civil Service Reporter
Management Commentary
by
Philip Collins, Esq., Tim Norris, Esq. and Melissa R. Murray, Esq.
Collins, Loughran & Peloquin, P.C.
The Commission 2015 Year End Statistics as of December 31, 2015 are now available on the Civil Service Commission website. Year-to-date, the Commission has received 171 new discipline, bypass and layoff appeals and has closed out 204. The current case inventory is 90, thirty-three cases less than last year. Please visit the Commission’s site for a complete update: http://www.mass.gov/anf/docs/csc/commission-stats-0115.pdf
Discipline Decisions
Discharge For Medical Incapacity
An Appointing Authority may terminate an employee who is medically incapable of performing his position, the Commission ruled in Morgan v. Town of Billerica, 28 MCSR 503.
Appellant began employment with the Town in November 2001 as a Heavy Motor Equipment Operator (HMEO). He went out on leave in September 2012 due to work-related injuries with an unknown return date, and quickly exhausted his paid leave benefits. Since the Town needed someone to work in his position, they terminated Appellant in June 2013, but offered to reappoint him once he received medical clearance and a position became vacant.
On appeal, the Appellant argued that the Town was not justified in discharging him from his position; the Commission disagreed. The undisputed fact that Appellant was unable to perform his job duties constituted just cause for terminating him, and contrary to Appellant’s argument that he should have been kept on payroll for health insurance purposes, the Town was not obligated to do so and it would have been an undue burden on their finances and productivity. The Commission has previously held that an appointing authority may terminate an employee who is medically incapable of performing his position. See Bracket v. Gloucester Housing Authority, 10 MCSR 27 (1997).
Liar Liar
Inappropriate employee behavior, such as making baseless criminal allegations against superiors, justify discipline and discharge from employment. In Condez v. Town of Dartmouth, 28 MCSR 515, the Commission upheld the termination of a Police Sergeant where he made blatantly false allegations of child abuse against his Chief, that were clearly in furtherance of his personal animus.
The Appellant began his career with the Dartmouth Police Department in 1998. He served as President of the Dartmouth Police Brotherhood (Union) and maintained a side business fixing computers. At work, he offered technology support to the Department’s Information Technology Director. As part of his side employment he helped fix a laptop belonging to the Chief’s wife. The laptop contained mostly family photos of the Chief, his wife, and their young toddler son.
In 2010, the Department updated its outdated computer software. Each computer required an individual activation key to run new software; however Appellant overrode the settings of the activation components so that these individual keys did not have to be purchased for each computer, presenting an ethical issue regarding software piracy. As a result, the Department computers operated with unlicensed software for a number of years.
In March 2013, the Chief learned of the issue with the software activation keys, and ordered an internal investigation; shortly thereafter Appellant was placed on administrative leave. Appellant then accused the Chief and his wife of taking pornographic images of their son, which Appellant claimed to have seen when fixing her laptop. The Department of Children and Families investigated the allegations and determined them to be blatantly false.
The Appellant argued his suspension and subsequent termination were unjustified, but the Commission ardently disagreed. The Commission found the Town had just cause for termination in Appellant’s improper behavior relating to the Department computers, as well as his wholly false allegations against the Chief. According to the Commission, the false allegations demonstrated untruthfulness and unconscionable retaliatory behavior motivated by an unfounded personal animus against the Chief.
Procedure 101
Chairman Christopher Bowman provided a clinic on Commission procedure in Tibbetts v. Town of Danvers, 28 MCSR 513, which was subject to dismissal on at least three procedural grounds.
The Police Department investigated Appellant, a Police Officer, after she ran a license plate at the request of another Town employee. After the investigation, Appellant signed an agreement accepting a two (2) day suspension and waiving any appeal to the Civil Service Commission or Appointing Authority.
Despite having signed a settlement agreement accepting her discipline, Appellant filed an appeal directly with the Commission contesting her suspension. However, the appeal was filed ten days late, without the required filing fee. After the appeal was refiled with the proper filing fee, the Commission dismissed the appeal on three grounds: (1) the appeal was untimely as it was filed more than ten days after the discipline was imposed; (2) the appeal was filed directly with the Commission bypassing the Appointing Authority – a necessary step for suspensions of less than five days imposed by a department head; and (3) “even if
Bypass Decisions
Not Much Is Not Enough.
Commissioner Cynthia Ittleman hinted that political considerations may have been in play when the City bypassed Appellant for initial appointment for police officer and sought his removal from the civil service list based on two questionable infractions and an unsubstantiated allegation of sick leave abuse. In Rivet v. City of Lawrence, 28 MCSR 454, the City bypassed an employee with 11 years’ service as a Traffic Control officer for the City, and many years of experience as a reserve officer in other communities.
In February 2014, Police Chief made conditional offers of employment to applicants with no glaring negative background issues, including Appellant. The offer was contingent on him passing a physical abilities test, medical exam, and psychological evaluation, which he did. Shortly thereafter, the Chief discussed the hiring with the newly elected Mayor, who expressed concern that not all candidates were treated equally in the hiring process and decided to personally review each candidate’s background investigation.
Upon review of Appellant’s file, the Mayor discovered that Appellant had previously received two warnings. In February 2012, the City issued Appellant a verbal warning after a citizen alleged that the Appellant had used abusive language when issuing a parking ticket. Appellant denied the allegations, and grieved it timely under his CBA. The City took no action against him, so he believed it was dismissed. In April 2012, a motorcycle accident severely injured Appellant. As a result, he was out of work for 11 weeks, using all of his PTO and unpaid leave. The City did not inform Appellant about FMLA, which would have allowed him more unpaid leave time. The City issued Appellant a written warning for sick leave abuse, which he was not aware of for more than two years and by that time, he was unable to grieve it.
In May 2014, the City bypassed Appellant for appointment despite his conditional offer, attributing the bypass to the warnings in his personnel file. In reviewing whether the City was justified in bypassing Appellant, the Commission held that the warnings did not constitute justification for the bypass. Specifically, the Commission found that the City failed to conduct a reasonably thorough review of the reasons for Appellant’s bypass, and never interviewed him to permit him to address the warnings. Further, the warnings were insufficient reasons for a bypass where they were singular and minor in nature. The Commission made it clear in this decision that when analyzing bypass cases citing poor work performance as the justification, it will carefully consider: the amount of performance issues; the severity of the issues; and whether they were brought to the employee’s attention. The Commission similarly rejected the attempt to remove Appellant from the civil service list which was premised on the same flimsy reasons as the bypass. The Commission emphasized that removal from the list is reserved for exceptional circumstances suggesting a higher standard than a mere bypass.
Objective Trumps Subjective
In a 3-1 vote, the Commission majority found the Town’s promotional bypass reasons lacking where the Town disregarded assessment center performance in favor of interviews that the majority felt were too subjective. In Daley v. Town of Wilmington, 18 MCSR 466, the Commission held that the subjective interview could not trump the objective assessment center, and the Appellant’s employment record and resume, which the majority found to be better suited to the position of fire lieutenant than that of the selected candidate.
Appellant was employed in the Town’s Fire Department as a Firefighter beginning in 1995. He was a West Point graduate, army veteran, completed several firefighter certification courses, and was working towards an Associate’s Degree in Fire Protection and Safety. The Town began assessing candidates for a vacant Lieutenant position in February 2014. At that point, Appellant was ranked first on a short list of eligible candidates.
The Town chose to obtain a new eligibility list rather than select from the existing short list. An assessment center was held, and out of twelve candidates, Appellant tied for third with another firefighter. The Town also conducted interviews as a component of the selection process. However, this component became the entire evaluation when the Town chose to disregard the Assessment Center rankings and select a candidate solely based on interview performance. As a result, the town selected Ryan, who had the highest interview score, but the lowest Assessment Center score, and bypassed the Appellant (ranked fifth in the interview) for the Lieutenant position. It was also revealed that Ryan was made aware of the interviews six weeks before notice of the interviews was provided to other candidates seeking the position.
The Commission majority rejected the Town’s reasons for bypassing the Appellant for promotion, finding that the interviews were too subjective. The Commission pointed to situations in which both candidates responded to questions with the same answers, yet Appellant’s answers were scored lower. The Commission also took issue with the Town’s criticism of Appellant’s casual dress and informal way of addressing his superior officers during the interview, finding that these matters have “no basis in merit principles.” Ironically, the majority also criticized the Town for failing to give Appellant extra credit for attending West Point and his military service, which despite Appellant’s informality in the interview, apparently made him a better fit for the “paramilitary” environment of the fire service.
In his dissent, Commission Chairman Bowman observed that it was not the Commission’s role to evaluate the candidates, and chided the majority for substituting its judgement for that of the appointing authority. According to Bowman, the majority ignored the fact that the Appellant refused to testify at his own hearing before the Commission, and engaged in undue speculation by suggesting that the town altered the results to keep the selected candidate form leaving the employ of the town. “The Commission’s role, while important, is mostly limited to assessing whether the Appointing Authority conducted a reasonably thorough review and produced valid reasons that are free of personal or political bias.”
Labor Service: No Statement of Reasons Required
When hiring into labor service positions, there is no requirement for the Appointing Authority to provide non-selected candidates with sound and sufficient reasons for their non-selection as long as the selected candidate comes from the first “2N + 1” candidates for appointment. Vella v. City of Cambridge, 28 MCSR 514.[1] The Commission held that non-selection in this situation does not constitute an appealable bypass.
Appellant began working for the City in September 2010 as a Parking Control Officer. The City sought Traffic Maintenance Workers through promotional appointments in 2015, and Appellant applied for a position. The City did not select Appellant, but the selected candidate came from within the 2N + 1 formula. Appellant filed an appeal with the Civil Service Commission. On the City’s motion to dismiss, the Commission concluded that the City correctly promoted individuals within the statutory 2N + 1 formula, therefore its decision not to hire the Appellant did not constitute a bypass requiring a statement of reasons. The appeal was dismissed.
One Piece Of The Puzzle
Where the civil service exam is only one component in the appointment process, a municipality may bypass a candidate despite their high performance on the exam. In Stabile v. Town of Andover, 28 MCSR 461,[2] the Town bypassed Appellant for a promotion despite his having the highest civil service examination score among all candidates.
In December 2014, the Fire Chief, requested a Certification list to fill a Deputy Fire Chief position. Appellant had the highest civil service examination score of the three candidates and had been employed with the Town for 26 years, serving as a Lieutenant since 1996. He also had an Associate’s Degree in Fire Protection and Safety Technology, received over 1100 hours of training, and had obtained more than two dozen certifications.
Candidates were required to participate in interviews with a panel of local fire chiefs. The panel welcomed resumes, letters of recommendation, certifications, and other materials for consideration. After reviewing civil service scores, interview scores, and supporting materials, the Town recommended bypassing Appellant in favor of another candidate, Gibson. The Town chose Gibson because: (1) he had the same degree as Appellant, an Associate’s degree, but was close to attaining a bachelor’s degree in Fire Science (Appellant had not pursued any higher education since 2001); and (2) Gibson scored much better in an interview conducted by five experienced fire chiefs from the area.
Prior to appealing to the Commission, the Appellant sought assistance from the Board of Selectmen Chairman, Director of Human Resources, and Town Manager in reversing the bypass, none of whom intervened. Appellant’s brother, a former Town Selectmen, also began soliciting assistance from officials. He told the Director of Human Resources that he was “witness to the Chief’s arrogance and resistance to management and HR direction.” Further, when it became clear none of the officials were intervening, Appellant’s brother e-mailed the Town Manager, criticizing him for being “manipulated” by Chief Mansfield, and stating “[d]espite your departure this summer, I had hoped that you would not check out on your duties as Town Manager, but this action indicates that my assumption was premature.”
The appeal tasked the Commission with determining if the Town had justification to bypass Appellant, and it held that the Town had such justification. While the Appellant topped the examination list for promotion to Deputy Fire Chief seven points ahead of the next highest candidate, the Commission deemed the variance insignificant since the civil service examination score is only one factor in the appointment process. Further, the Commission credited Gibson’s superior educational credentials and interview performance as acceptable rationale in his appointment and Appellant’s bypass.
Notably, the Town proved to the satisfaction of the Commission that the only evidence of violating merit principles was the intervention of Appellant’s brother – a former selectman – into the process once it was known who the Chief was recommending to the Town Manager. See also Recupero v. City of Chelsea, where the Commission majority rebuffed the Appellant’s father, a sitting City Councilor, for initiating several phone calls to the police chief advocating for his son’s hiring as a police officer.
Bypasses Based on Alleged Drug Use Post-Boston Hair Drug Test Appeals
There have been only two Commission bypass decisions involving hair drug testing since the Boston Hair Drug Test Appeals, 26 MCSR 73 (2013). The first was Lecorps v. Department of Correction, 26 MCSR 519 (2013), an original appointment bypass case in which the Appellant claimed that he had tested positive because he innocently ate a brownie at a party that he did not realize contained pot. In that case, the Commission upheld the bypass, but the Commission warned that even with original appointment cases (as opposed to discipline cases involving drug testing), Appointing Authorities should take steps to address the factors/concerns highlighted by the Commission in the Boston Hair Drug Test Appeals.
The second case is Gannon v. Boston Police Department, 28 MCSR 541, a bypass appeal decided by the Commission in October, 2015. In Gannon, as opposed to Lecorps, the Appellant denied any and all drug use, and had previously tested negative in 2006, 2007, 2008, April 21, 2010 and in 2012. Also, contrary to the Appellant in Lecorps, Gannon immediately went to the police department and sought his own independent drug test after being informed of the positive test. Lecorps on the other hand waited nearly a month to retest.
Notwithstanding his multiple negative drug tests and claims that a mistake had been made, the Boston Police Department (BPD) justified its bypass decision on its practice of never considering any candidates after they have tested positive. The Commission disagreed. Given the unique circumstances and unreliability of hair drug testing (see Boston Hair Drug Test Appeals), the Commission allowed Gannon’s appeal and ordered that he be placed at the top of the current or future certification for the position of permanent full-time police officer within the Boston Police Department.
In rejecting the BPD’s policy of never considering candidates who have tested positive, the Commission analogized that policy to policies calling for the automatic bypass of candidates with criminal histories. According to the Commission, while an appointing authority has wide discretion in bypass determinations, it is not limitless, and Appointing Authorities cannot have a blanket policy that precludes candidates who have criminal histories or who have tested positive from any future employment. Consideration must be given to the date, timing and circumstances surrounding the testing or prior criminal acts.
Absolute Veterans’ Preference Does Not Apply To Promotional Appointments
In Dupuis v. Town of Bourne and Norman Sylvester, 28 MCSR 603, Appellant Dana Dupuis filed a bypass appeal challenging the Town’s failure to appoint him to the position of Fire Chief in the Town of Bourne. The Town and the newly appointed Fire Chief opposed the appeal and filed a Joint Motion for Summary Judgment on the grounds that the Appellant had been erroneously granted a statutory veteran’s preference placing him at the top of the list. They argued that without that preference, the Appellant would have been tied with Chief Sylvester, the selected candidate, and that in the case of a tie, there is no bypass. In a decision by Commissioner Paul Stein, the Commission agreed with the Town and Chief Sylvester, and granted their Joint Motion.
On October 28, 2014, the Town of Bourne conducted an assessment center for the position of Fire Chief. The Appellant, Deputy Dupuis, Norman Sylvester and five others took part in the assessment center. The scores from the assessment center were sent by the Town’s consultant to HRD so that they could be recalculated with statutory and/or education and experience points. The following assessment center scores were sent to HRD:
84% J. Mederios
79% N. Sylvester
77% D. Dupuis
77% J. Feeney
76% J. Grasso
76% D. Pelonzi
74% D. Braley
After several miscalculations and attempts at awarding points and establishing final scores, HRD finally sent the Town a revised eligible list. Deputy Dupuis was at the top of the list. Rather than award Dupuis two (2) preference points for his status as a veteran, HRD awarded Dupuis an absolute veteran’s preference which meant that he automatically moved to the #1 spot on the list. All other candidates continued to be listed in order of their scores (plus any statutory or experience points). The top three candidates were interviewed (Dupuis, Mederios and Sylvester) and following the interviews, the Bourne Board of Selectmen approved the appointment of Chief Sylvester. The Town notified Dupuis, based on his position on the eligible list, that he had been bypassed for the position of Chief. Dupuis filed an appeal with the Commission.
At issue in the appeal was whether the Appellant was entitled to the absolute veteran’s preference set forth in G.L. c. 31, §26 for original appointment after an open competitive exam, or whether the absolute preference only applies to original – i.e., initial – appointments to civil service, and not when the original appointment is clearly a promotion, such as the appointment to the position of Fire Chief. Both HRD and Dupuis argued that Section 26 required that Dupuis be granted the absolute preference because the Town had used an open competitive examination. They argued that the Personnel Administration Rules (PARs) define an “open competitive examination” as “any examination for an original appointment which is open to all members of the public….” HRD argued that because an open competitive examination by definition results in an “original appointment”, the first paragraph of Section 26 must apply, and veterans (and disabled veterans) are moved to the top of the eligible list.
The Town and the Chief disagreed, and argued that the history and intent of the statutory veteran’s preference was to provide a preference to veterans in the original selection for employment in civil service; it was not intended to be awarded over and over again once a veteran had already gained entry into the system. Palluccio v. Department of Revenue, 28 MCSR 118 (2015) (“veteran’s preference was meant to facilitate original entry into civil service but not advancement”). While there was some recent and significant case law on the Town and the Chief’s side, HRD and the Appellant argued that the cases cited involved the issue of veterans preference and provisional appointment/promotions, and that they had to be considered in that limited context.
The Commission agreed with the Town (and not with HRD), and held that the Appellant was not entitled to an absolute veteran’s preference in his efforts to be promoted to the position of Bourne Fire Chief. Rather, according to the Commission, Dupuis was entitled to the two (2) point administrative preference allowed under PAR.14(2), which when added to his score would have resulted in Mr. Dupuis and Chief Sylvester being tied at 79%. The result, as those familiar with civil service are already aware, is a tie, and there is no bypass when the selected candidate and the aggrieved candidate are tied.
Update: DOC and the Twenty-Seven Year Quest for a Captain’s Promotional Examination
In the last round of commentary we shared a little bit of civil service history with you when we commented on the request by three permanent Lieutenants at the Department of Correction (DOC) for an investigation by the Commission into why HRD or DOC has never – in over 27 years – held a promotional examination for the position of Captain (or the predecessor position Assistant Deputy Supervisor). In Re: Request by Mograss, Hocking and McLaughlin to Investigate the Failure to Administer Civil Service Examinations For the Public Safety Position of Captain at the Massachusetts Department of Correction, 28 MCSR 261.
At last report, the Commission had determined that, “[u]nless and until the statute is amended, DOC and HRD must move forward with a resolution that results in compliance with the civil service law and rules related to the public safety position of Captain at DOC.” HRD and DOC were given ninety (90) days to propose the most cost effective and efficient means of ensuring compliance with the law. For those that are interested, here is what the Commission ultimately ordered with respect to this situation:
- HRD and DOC must take all necessary steps to: (a) create a promotional exam for the position of Captain at DOC; and (b) create a list of eligible candidates for the position of Captain that will be used to create Certifications which will be used to make promotional appointments to the position of Captain at DOC.
- HRD and DOC shall provide the Commission with six (6) month status updates.
- Once an eligible list for Captain is established, all individuals serving as Provisional Captains at DOC prior to the date of the Commission’s Order (December 10, 2015) shall be made permanent and given tenure.
- Relief provided to individuals covered by #3 shall not apply to individuals provisionally promoted after the date of the Commission’s Order. Individuals promoted after the date of the Order will be required to comply with applicable civil service rules and laws in seeking promotional appointment to the position of Captain.
In Re: Request by Mograss, Hocking and McLaughlin to Investigate the Failure to Administer Civil Service Examinations For the Public Safety Position of Captain at the Massachusetts Department of Correction, Response to Request for Investigation, 28 MCSR 601.
[1] Joshua R. Coleman of Collins, Loughran and Peloquin P.C., represented the City of Cambridge.
[2] Joshua R. Coleman of Collins, Loughran and Peloquin P.C., represented the Town of Andover.
