Commentary on Massachusetts Civil Service Commission Decisions (Jan. – April, 2015)

[1] holding that an appointing authority may not suspend or terminate a tenured employee for the employee’s failure to testify at a hearing pursuant to Mass. Gen. Laws c. 31, §41.

In 2008, Dykas was allegedly engaged in noncriminal misconduct involving his ex-wife in violation of a Last Chance Settlement Agreement. He cooperated with the internal investigation and attended an investigatory interview. After the investigation concluded, the City Manager (Appointing Authority) scheduled a mandatory pre-termination hearing pursuant to c. 31, §41. Dykas was ordered to attend the hearing and provide testimony. On the notice provided to Dykas, it said, “failure to obey this directive in any respect could result in discipline up to and including dismissal, separate and apart from any discipline imposed as a result of the substantiation of the underlying [misconduct] charge.”

Dykas showed up at the hearing with his attorney but left before providing any testimony. He left his attorney there to represent him. The City ultimately terminated him as a result of his failure to testify. Dykas appealed this decision to the Civil Service Commission and the Civil Service Commission overturned the termination on the grounds stated above. The City appealed the Commission’s decision.

The City argued that because §41 does not explicitly establish a statutory testimonial privilege and because the City’s police department rules and regulations required officers to provide truthful testimony when requested, the Commission decision overturning the termination exceeded its authority and intruded on the City’s right to enforce its rules of conduct. The Court disagreed, holding that the §41 hearing is held for the protection of the employee, not the appointing authority, and as a result, the tenured employee may not be sanctioned for his failure to testify at his own §41 hearing.

Police Departments Can’t Avoid Reinstating Employees By Refusing To Reinstate Their License To Carry Firearms

In 2010, the Department of State Police (MSP) dishonorably discharged Sweet from his position as a State Police trooper for unbecoming conduct, insubordination, violating workplace violence rules, and for untruthfulness. On or around the same day, State Police Colonel McGovern, acting in her capacity as an authorized Massachusetts firearm licensing authority, revoked Sweet’s Massachusetts firearms license. Although Colonel McGovern stated that she decided to revoke Sweet’s license for reasons independent of his discipline, the facts and circumstances underlying Sweet’s discipline were among those provided for the license determination. At the time, Colonel McGovern notified Sweet of his right to appeal the revocation, but he did not appeal in the time frame mandated by the statute. At the time of this decision, Sweet remained unlicensed to carry a firearm in Massachusetts.

In 2013, Sweet successfully appealed his termination to the Civil Service Commission, as the Commission determined that MSP lacked just cause on all the charges against him except untruthfulness. The Commission modified his discipline from dishonorable discharge to a sixty-day suspension, and ordered his reinstatement to permanent duty following the suspension. Both parties filed appeals in Suffolk Superior Court, and when MSP did not reinstate Sweet as directed, Sweet filed a Motion to Compel Compliance with the Commission’s Order, which the court denied.

In the meantime, on January 4, 2014, Sweet filed an application for a license to carry a firearm, which was denied based on Colonel McGovern’s determination that he was not a suitable person to possess a firearms license. After he unsuccessfully appealed this decision, Sweet again filed an application for a license to carry a firearm, which was also denied.

In Sweet v. Massachusetts Civil Service Commission & Department of State Police, the MSP filed a Motion for Partial Summary Judgment, arguing that the Commission does not have the authority to reinstate Sweet because he does not possess a valid unrestricted license to carry a firearm—a job requirement. The Court disagreed, finding that a material fact exists as to whether MSP troopers are required to possess an unrestricted license to carry a firearm because the MSP has made exceptions to this rule. Although MSP argued that it has never made an exception for someone with a revoked license, the Court did not find this distinction persuasive.

While the Court recognized that the Colonel has broad discretion in determining who is eligible to possess a firearms license, the Colonel could not choose to deny Sweet a license and then use that denial as an excuse to violate a legally binding directive to reinstate him—otherwise, the trooper’s contractual right not be discharged except for just cause would be meaningless.

Ultimately, the Court denied MSP’s Motion for Partial Summary Judgment, where the Commission ordered the reinstatement of Sweet’s employment, not his license to carry, which is within its authority.

DISCIPLINE DECISIONS

Because I Said So.

A Dartmouth Police Officer, who used a police cruiser at a private detail without permission, was unsuccessful in reducing her one-day suspension becauseas a para-military organization, Police Departments are “entitled . . . to expect strict compliance with [their] lawful orders.” In Thibodeau v. Town of Dartmouth, 28 MCSR 84 (2015), the Commission refused to modify the suspension where the officer’s misconduct warranted some discipline and the facts as found by the Commission did not vary substantially from those found by the Police Department.

Police Officer’s Relationship with Informant Costs Him His Job.

A frontrunner for this term’s “We’re Not Making This Up” Award, Foley v. City of North Adams, 28 MCSR 153, involves the termination of James Foley, a Sergeant in the North Adams Police Department, for various rule violations resulting from his counsel, assistance and association with a former police informant named Pini. Pini was facing a lengthy prison sentence for a series of breaking and entering incidents in Williamstown, and Foley, a veteran police officer, with no real disciplinary history, started talking to him and his girlfriend over the phone, visited him in prison, and met with him and helped him map out his defense, going so far as to identify weaknesses in the investigation done by one of his own officers. He even used department resources to type up two and a half (2½) pages of notes for Pini, while on duty, which he dropped off at Pini’s home and which Pini later claimed were “a police report from a police officer named Foley that show[] he didn’t commit the crimes for which he was being tried….”

Whatever the reason for Foley’s conduct – whether he and Pini had become friends, he truly believed Pini was innocent, or he was duped into providing Pini with assistance, Foley’s actions violated numerous rules and regulations of the Police Department related to: conduct unbecoming a police officer; improper associations; undue influence; interfering with the course of justice; public criticism of department; truthfulness; use of department records, reports, and communications; orders; and insubordination. Perhaps most significant, however, were his attempts to cover up his behavior after the fact and the lies that resulted from these attempts. Not surprisingly – his termination was upheld by the Commission. While much of Foley’s conduct was deemed serious misconduct by the Commission, its decision highlighted the need for police officers to be truthful at all time and once again affirmed that “lying in a disciplinary investigation alone is grounds for termination.”

DCF Employee Terminated After Police Found Her Own Grandchildren, Who Lived Under Her Roof, In Danger.

In light of what it described as “alarming conduct,” the Commission upheld the termination of a thirty plus year employee of the Department of Children and Families (DCF) for allowing her grandchildren to live with her in deplorable conditions, and for undermining the agency’s efforts to protect them.

In Harrison v. Department of Children and Families, 28 MCSR 43, the employee lived in a one family home with her son, his girlfriend, and her two grandchildren, ages five months old and two years old. In executing a search warrant related to a drug investigation, the police entered the home and found narcotics, a loaded handgun, and the home in deplorable conditions. The children’s cribs were filled with clothing and debris, the children were dirty, and the home was filled with clutter, animal feces and other substances which caused foul odors. During this search of her home, the appellant notified the police that she was an employee of DCF. One of the State Police Troopers who executed the warrant was instructed by a superior to initiate a MGL c. 119, s.51A report pertaining to the abuse or neglect of a child as a result of the conditions found at the home.

Following the search, a Brockton Fire Department (BFD) Lieutenant inspected the home and declared it uninhabitable based on the fact that (among other reasons) the egresses were blocked by debris, including a snow blower, and combustibles, including a gas tank. After the Lieutenant unsuccessfully attempted to contact DCF regarding the conditions of the home, he sent an email including pictures of the children’s living conditions. Based on these complaints, DCF decided to remove the children on an emergency basis and they contacted the maternal grandparents to arrange for the children to stay with them after they were removed from the home.

When DCF arrived at the appellant’s home, she denied access to parts of her home and denied knowing where her grandchildren were, stating that they had left with their mother. Just as the DCF investigators were about to leave, the maternal grandmother arrived, stating that she knew where the children were. She went upstairs and emerged from the second floor of the home—a forbidden area—with the two children and their mother.

DCF terminated the appellant for lying about the whereabouts of her grandchildren, trying to hide them from DCF investigators, being uncooperative with DCF investigators, and using her position at DCF for personal gain and/or to intimidate DCF investigators and/or police officers. The Commission upheld this discharge, noting that as an employee of DCF’s Legal Office, the appellant had been an integral part of the state entity charged with enforcing the laws securing the care and protection of children in the Commonwealth, and that her “alarming conduct” was adverse to that mission.

BYPASS DECISIONS

Commission Relies On CORI Law When Overturning Bypass For OUI

In Camacho v. Massachusetts Environmental Police, 28 MCSR 18, the Commission refused to uphold a bypass for original appointment based on a twelve year old operating under the influence (“OUI”) charge and the candidate’s failure to disclose an instance of “military discipline” on his written application. The Commission found that the candidate did fully disclose the military offense in his interview and that from his response, it was clear that he did not view his military experience as discipline that needed to be disclosed on his application because the incident had not resulted in any punishment. It also found that the twelve year old OUI, which was not even listed as one of the reasons for bypassing the appellant, could not be used as an additional disqualifying condition because Camacho was never asked about it or made aware of its potential impact on his candidacy.

In 2000, while on active duty, the candidate was charged with driving under the influence of alcohol after he was found asleep in his parked vehicle in a state of intoxication. The offense was a misdemeanor under state law and is not a “conviction” on his criminal record. As a result of the charges, the candidate appeared before a “Captain’s Mast,” a military procedure where his commanding officer refused to impose any discipline after he found that no military offense was committed.

In a decision authored by Commissioner Stein, the Commission held that the Massachusetts Environmental Police (MEP) failed to establish reasonable justification for the bypass. The Commission reminded employers that “using a criminal record, without a thorough review of all the circumstances, particularly a single, stale offense that does not suggest a pattern of misconduct, can be a problematic reason to disqualify an otherwise qualified candidate, both in terms of basic merit principles under civil service law and with respect to recent sweeping changes in the CORI law,” which mandates that employers consider the circumstances of a candidate’s criminal record instead of immediately disqualifying them from consideration.

Finally, the Commission noted that while there was no evidence of bias or improper consideration, MEP’s employment application, which is completed by applicants prior to their interview, includes a section entitled “Physical Data,” which makes an extensive inquiry into an applicant’s physical and mental health history. The Commission cautioned MEP about amending their application process, as the solicitation and evaluation of a candidate’s medical history prior to an interview is prohibited by both state and federal law.

Commission Upholds Bypass Although One Reason Justifying Bypass Lacked Reasonable Justification

In 2011, the Springfield Fire Department found itself in some hot water after a Commission investigation concluded that the Department’s appointment process was tainted by the involvement of a Deputy Fire Chief, whose son was appointed as a firefighter during that hiring cycle. As a result, the Commission issued a series of remedial orders, including requiring the City to reconsider several candidates who were bypassed for appointment during the tainted appointment process, and requiring that the next hiring cycle include an outside review panel to interview candidates and make recommendations. Both this mandated process and the terms of a consent decree were in place during the hiring cycle at issue. The consent decree requires the City to provide the Human Resources Division (HRD) with a detailed reason for bypassing a candidate.

In Reyes v. Springfield Fire Department, 28 MCSR 65 (2015), after finding that the Commissioner was genuinely trying to ensure a fair process, the Commission upheld the Appellant’s bypass for original appointment based on her poor interview performance, despite the fact that it found no support for the Department’s contention that she evidenced a willingness to escalate all matters when responding to scenarios regarding co-worker misconduct.

After personally reviewing the videotaped interviews, the Springfield Fire Commissioner made appointments consistent with the rankings of the outside review panel, bypassing the Appellant, but appointing one candidate who had been granted relief by the Commission as a result of the 2011 investigation. As justification for her bypass, the Fire Commissioner provided HRD with documentation from the interview panel detailing the numerical scores of each candidate.

When HRD informed the City that more detailed information would be required to justify the bypass decisions, and no further information was available from the interview panel, the Fire Commissioner found himself in a pickle, as he had not participated in the process in an effort to remove all bias. In order to provide HRD with more detailed information, the Fire Commissioner reviewed the recorded interviews again and compiled his own written comments regarding the bypassed candidates’ performance. The Commission acknowledged that to the bypassed candidates “this step could understandably be viewed as nothing more than an ex post facto attempt by the City to provide detailed reasons (for the bypasses) that never existed to begin with.” However, after considering the circumstances, the Commission concluded that it was the only reasonable course of action for the Fire Commissioner to take where HRD requested further information and none existed.

Ultimately, the Commission concluded that reasonable justification existed for the appellant’s bypass based on her poor interview performance where almost all of the Fire Commissioner’s written comments were supported by the interview recording. Although there was no support for the Fire Commissioner’s conclusion that the appellant was someone who opts “solely for escalating matters,” the rest of her responses were overly general and did not fully address the questions before her.

In conclusion, the Commission was quick to add that this decision should not be viewed by the City or the Appellant as a bar against future consideration should she again become eligible, particularly where only one of the City’s 220 uniformed firefighters are female, “a rather startling statistic.” Citing her experience operating a .50-caliber gunner in Iraq and her professional demeanor during the hearing, Commission noted that she has many qualities that would make her a superior firefighter and would double the City’s contingent of female firefighters.

Failure to Meet HRD Medical Standards Is Sufficient Justification for Bypass

Under Massachusetts law, “police officers and firefighters cannot begin to perform the duties of their position until they have successfully taken an initial medical and physical fitness examination and have met the initial medical standards.” This term, there were two decisions by the Commission that dealt with the HRD Medical Standards: one involving a rare, malignant disease, and one involving HRD’s vision standard.

The first, Corcoran v. Boston Fire Department, 28 MCSR 100, addressed the bypass of a candidate for original appointment to the position of firefighter who had been deemed unqualified based on his ongoing treatment for a rare, malignant form of cancer. On appeal, Mr. Corcoran argued that the City automatically (and unfairly) bypassed him without even determining his ability to perform the essential functions of a firefighter, and he disputed that his daily dose of Gleevec, a chemotherapy pill he took regularly, constituted ongoing treatment under HRD’s Medical Standards.

Upon review of the Medical Standards, and notwithstanding what the Commission determined was Mr. Corcoran’s credible and straightforward testimony regarding the status of his disease, the Commission found that the Boston Fire Department’s decision to bypass Mr. Corcoran conformed to the HRD Medical Standards and as a result, the Department had reasonable justification for his bypass.

Under section (o)2.a., of the HRD Medical Standards, a Category B disqualifying medical condition is,

malignant disease which is newly diagnosed, untreated, or currently being treated. The medical evaluation of any appointee with malignant disease which is newly diagnosed, untreated, or currently being treated shall be deferred until treatment has been completed. Treated malignant disease shall be evaluated based on that individual’s current physical condition and on the likelihood of that individual’s disease to recur or progress. [emphasis added].

In Corcoran’s case, although his cancer was being suppressed and was in remission, he had not been “cured” of the disease and continued to undergo treatment and see his doctor every two to five months. In addition, although he did not currently have any physical limitations or side effects from his treatment that would have impacted his ability to work as a firefighter, he did regularly take a form of chemotherapy in pill form that had the potential to cause side effects. Based on this information, the Commission determined that “[s]ince his treatment is on-going, it has not been ‘completed’ and the Department cannot now medically evaluate him for consideration for the job of firefighter, as required by law, and the Department may disqualify him and bypass him.” The Commission found that there was no need to evaluate the effect of the medical condition on Corcoran’s ability to do the job because the bypass was justified based on the ongoing treatment of the disease.

Commissioner Stein issued a reluctant concurrence in this case, stating that “the plain language of the HRD Medical Standards” impelled the Commission’s conclusion, but that he questioned whether Mr. Corcoran’s situation could and should be distinguished from other chronic medical conditions, and expressed a hope that medical science and the Legislature would eventually revisit this issue so that this type of condition is not an automatic disqualifier in the future.

The next case dealing with HRD’s Medical Standards was Grajales v. City of Attleboro and Human Resources Division, 28 MCSR 110, which dealt with the inconsistent standard expressed in the Medical Standards versus a Frequently Asked Questions (FAQ) document put out by HRD. The Appellant, Mr. Grajales, appealed the City of Attleboro’s rescission of his conditional offer of employment, after the City asserted that he failed to meet the vision standards required of a public safety candidate. The City based its decision on the fact that Grajales had “uncorrected vision worse than 20/100” in his left eye. Under the Medical Standards, this is an automatically disqualifying condition.

Grajales disputed this, arguing that his completion of the Academy and reliable service as a call firefighter in a different community demonstrated that he was qualified and capable of performing the essential functions of a firefighter. He also argued that a reference in the Medical Standards FAQs listing the vision requirement as a “monocular standard” meant that vision in more than one eye is not required.

The Commission disagreed with Grajales and upheld the City’s bypass. Citing the fact that the Commission has consistently ruled that it is bound by the HRD Medical Standards as written, and does not have the authority to revise, change or invalidate them, the Commission determined that Grajales’ disqualification for appointment was not only supported, but compelled as a matter of law. Furthermore, it found that the actual HRD Medical Standards “have the force of law and are controlling over the FAQs.”

In reaching its decision in Grajales, the Commission made clear that they were upholding the bypass based on the Appellant’s failure to meet the HRD Medical Standards as they existed at the time of the bypass. The Medical Standards have since been updated and the Commission noted that changes in the Standards may or may not impact future opportunities for appointment.

Avoid Appearance of Results-Driven Bypass

In Recupero v. City of Chelsea, 28 MCSR 137, what seemed like a slam dunk for the City of Chelsea, ended in a 3 to 1 decision, with a Minority Opinion by the Hearing Officer, Commissioner Paul Stein. Commissioner Stein found that the city had failed to establish that it had reasonable justification for bypassing the Appellant based on a series of factual and procedural mistakes made by the City. Commission Stein’s focus on those mistakes, highlights for appointing authorities the importance of being careful and thorough in conducting and reviewing background investigations, and in determining how juvenile and old criminal information is weighed and used in bypass decisions. As part of his opinion, Stein also highlighted a comment allegedly made by the Chief of Police to Recupero’s father, an elected City Council member, that there was “no way” he would recommend Recupero for appointment for the Chelsea Police Department and that he would be wasting his time to pursue an appointment.

Luckily for the City, despite some mistakes, the overwhelming preponderance of the evidence was still good and clearly supported the City’s decision to bypass Recupero. Although Recupero had a juvenile record which Stein believed should not have been considered, he also had an adult record which included twelve (12) adult criminal charges against him. And, rather than rely solely on the Board of Probation report, the City’s investigator had reviewed the arrest and incident reports related to the charges, and Recupero was given an opportunity to explain the incidents to the interview panel. As he did with the concerns about his job history, driving record, and credit report. Importantly, the background investigation also included, and the City considered, positive aspects of Recupero’s background, including his Army National Guard Service and positive interviews with personal references.

When viewed as a whole, the majority of the Commission found that the appointment process, including the background investigation, was objective and thorough. In fact, the Majority had a rather different view of the alleged conversation between Chief Keyes and Recupero’s father, the City Councilor. The Majority felt that the discussion between the two, “raises more questions about the actions of Councilor Recupero than the City’s Police Chief,” and suggested that the Councilor seek guidance from the State Ethics Commission next time his son is a candidate for a position in Chelsea.

OTHER COMMISSION DECISIONS

Interpreting and Applying the Amended Residency Requirements (M.G.L. c. 31, s. 58)

The Commission addressed two requests for Investigation this term related to the amended section 58 residency requirements for public safety officials inMassachusetts. In O’Neill v. City of Lowell and Human Resources Division, 28 MCSR 92, and Request for an Investigation Against Town of Salisbury by Mark C. Thomas, 28 MCSR 121, the Commission consider the legislative history of the change, the position(s) adopted by HRD and the legislative intent behind the change.

Section 58 provides that:

…any person who receives an appointment to the police force or fire force of a city or town shall within nine months after his appointment establish his residence within such city or town or at any other place in the commonwealth that is within ten miles of the perimeter of such city or town; …

In 2013, section 58 was amended to include the following additional text:

Provided, however, that a city or town may increase the 10 miles residency limit under a collective bargaining agreement negotiated under chapter 150E[.]

In O’Neill, the Appellant argued that two fellow Lowell police sergeants should not have been allowed to sit for a promotional examination for police lieutenant because they were residents of New Hampshire, and did not meet the requirements of G.L. 31, section 58. O’Neill ranked 6^th in Lowell’s Assessment Center for lieutenants, and the two sergeants whose eligibility was being challenged were tied for third.

Prior to issuing a decision, there were a series of status conferences and/or prehearings during which the Commission heard evidence from the Appellant, the two officers whose eligibility was being challenged (Mr. Cullen and Mr. Crawford)[2], and HRD, who has responsibility for determining eligibility to sit for promotional exams. Interestingly, during the course of the pre-investigation process, HRD changed its position regarding the amended section 58. Initially, HRD’s position was that amended section 58 did not eliminate a requirement that police officers and firefighters reside “in the commonwealth.” This opinion later evolved such that it agreed that public safety officers could reside outside of the commonwealth “as the law may permit on a going forward basis.”

Also significant in this scenario, was that although the City and the Union had had some discussions regarding the amendment to G.L. c. 31, s. 58, there was not an agreement in place at the time of the Assessment Center (April 29 & 30, 2014). In fact, an agreement was not reached until after the appeal was filed in November, 2014. The agreement eventually reached between the City and the Union provides that “Lowell Superior Officers may reside outside the Commonwealth but not to exceed a twenty-five mile radius from border to border.” Both HRD and the Appellant took the position that since the Agreement was not reached until November, 2014, and the Assessment Center took place on April, 2014, the Agreement did not apply to Mr. Crawford during the time period in question.

The Commission disagreed. The Commission determined that the fact that

the City and the union did not collectively bargain a change to the permissible geographical boundaries for officers’ residences until November 2014 should not be allowed to undermine the amended statute which indicates that the Legislature was aware that the prior version of section 58 had been unevenly applied, that it would take an unknown number of cities and town and unions varying amounts of time to address the matter, and that the Legislature intended the amended statute to promote resolution of the matter by agreement.

Since, in the Commission’s opinion, the parties had met and negotiated an agreement, the Commission found that the matter had been resolved in the manner intended by the Legislature, and that no further investigation was warranted.

The Commission reached a similar result in In Re: Request for Investigation Against Town of Salisbury By Mark C. Thomas, 28 MCSR 121. After therequest for investigation was received, but prior to the six (6) month status conference (to be held consistent with the Commission’s rulings in Erickson v. Rockland Fire Department, 26 MCSR 29 (2013)), the Town reached an agreement and signed a new collective bargaining agreement with the union that effectively expanded the prior ten (10) mile residency requirement to twenty (20) miles, and allowed public safety officers in Salisbury to reside either in Massachusetts or New Hampshire. As a result, the Commission held that, since all of the Town’s police officers were in compliance with section 58, as amended, as of the date of the status conference, no further investigation was warranted.

Joint Request For Chapter 310 Relief Not Guaranteed

The Commission’s decision in Dorgan v. City of Methuen, 28 MCSR 200, serves as a reminder that Chapter 310 relief is not automatic, and it requires more than just the agreement of the parties. The relief must be reviewed and approved by the Commission, and such approval is more than just a pro forma review.

In Dorgan, the Appellant and the City reached settlement a few days prior to hearing and asked the Commission to grant traditional relief provided to appellants who prevail in bypass appeals, thus ensuring that Dorgan would receive at least one more consideration for appointment. The agreement was apparently based on the City’s determination, after it reviewed Dorgan’s background information a second time, that the information that it had relied on in its decision to bypass him was stale.

The Commission denied the relief—”at this time”—noting that there were three other bypassed candidates from this round of hiring and that the City had not provided any indication of what was happening with those cases, or whether those candidates had received the benefit of having their application and background information reviewed again. According to the Commission,

…the Commission does not consider this request in a vacuum. As stated above, there are three (3) other bypass appeals pending with the Commission regarding their non-selection for Methuen reserve police officer, none of whom are represented by counsel. At a minimum, it would appear that those candidates’ applications should receive the same ‘further review’ that has been granted to Mr. Dorgan. While nothing precludes the City, after the further review, from deciding to move forward with the full hearing as opposed to proposing joint relief, the further review would seem to be the only way to ensure that all candidates have received fair and impartial treatment.

The Commission determined that no further actions should be taken on the parties’ request, until additional information was provided by the City regarding the status of the other bypassed candidates.

E & E Points for Campus Police Officers Properly Excluded

Appointing Authorities dealing with the hiring and promotion of candidates who have spent time as campus police officers, may be interested in a series of decisions reached by the Commission this term regarding HRD’s decision not to grant Education and Experience (E & E) credit to campus police officers who took the 2013 entry-level “Police Officer – Cities & Towns and MBTA Transit Police – Trooper, Massachusetts Department of State Police” exam. Atotal of 5 campus police officers filed similar appeals with the Commission: Maurice v. Human Resources Division, 28 MCSR 203,Verderico v. Human Resources Division, 28 MCSR 229, Persampieri v. Human Resources Division, 28 MCSR 211 (B1-13-254), Sprague v. Human Resources Division, 28 MCSR 211 (B1-13-237), and Schroeder II v. Human Resources Division, 28 MCSR 211 (B1-13-239).

After reviewing the evidence, the Commission determined that HRD had reasonable justification to deny the Appellants E & E credit for their experience as campus police officers, and that the exam language and materials were clear that “individuals may apply to receive credit for employment or experience in the position title of municipal police officer.” The Commission found that HRD had applied its policy fairly and consistently and that HRD had properly exercised its authority to decide that E & E credit would only be awarded for full time municipal police experience, notwithstanding the fact that in the past they had allowed such experience when the instructions and exam materials had been less explicit and referred only to experience as a “police officer,” rather than “municipal police officer.”

No Better Late Than Never

In an odd case based on a rather antique fact pattern, the Commission concluded that claims arising prior to 2000, the birth of the civil service statute of limitations, may still be untimely where the appellant sits on his claim. In Mulligan v. Boston Police Department, 28 MCSR 57, the Commission granted the Boston Police Department’s (BPD) motion to dismiss a claim filed by a 41-year old former police cadet seeking to challenge his non-appointment to a permanent position as a police officer in 1997.

While the appellant received a probationary appointment after passing the civil service examination in 1994, his name never appeared on a certification issued in 1996 to fill police officer vacancies. The appellant worked as a cadet until 1997 when he resigned at the age of 27. After he resigned, BPD offered him an appointment as a probationary police officer, and the appellant took and passed the Physical Abilities test. When the appellant reported to the academy, he was told that the class had been overfilled and that he should resign to be considered for a possible future position. The Appellant refused to resign, and instead requested a leave of absence, for which there is no documentation. Soon after, BPD made several attempts to contact the appellant, even leaving a message with his parents, to no avail.

Approximately one year later, the appellant called BPD to inquire about his appointment, and he was told that the list generated from the 1994 examination expired, and because he had not taken a subsequent civil service examination, he was no longer eligible for employment. Several years later, the Appellant again contacted BPD asserting that because he took a leave of absence, he was unaffected by the expiration of the list generated from the 1994 examination. BPD informed the Appellant that where he was more than thirty-two years of age (the former age limit for employment as a BPD officer) and due to the increasing number of veteran applicants, he would not be considered for appointment. The Appellant was never appointed to the position of Police Officer.

In 2011, the Appellant concluded that BPD discriminated against him because of his family relation to a slain Department officer and that BPD had misinformed him about his ability to be appointed. In 2012, the Appellant filed this appeal, and at the time the Department filed its motion to dismiss, the Appellant was approximately forty-one years old, which exceeds the current age limit to become a BPD officer.

The Commission granted BPD’s motion to dismiss, as the claim was untimely and ultimately beyond the scope of civil service. Although the sixty day statute of limitations was not effective until 2000, and it does not appear there was any statute of limitations prior to 2000, “that cannot be interpreted to mean that a person can file an appeal ad infinitum.” Furthermore, where BPD told him he was not eligible for employment several times after 1997, he was aware that he was not going to be appointed and did not file an appeal or retake the exam. Now, his age exceeds forty years old, the revised age limit for appointment to the position of police officer in Boston. Finally, the appellant has no civil service rights, as he was appointed as a cadet to the position of police officer, which is outside the scope of civil service laws.

 

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