In Kerr v. Boston Police Department, the Civil Service Commission (CSC) in a 3-2 decision upheld the bypass of a candidate for police officer based on untruthful answers during a background investigation. In its January 18, 2018 decision, the CSC rejected or set aside 5 of 7 reasons for bypass proffered by the BPD, ultimately relying on untruthful statements to the background investigator about misconduct allegations from middle school, coupled with the appellant’s selective memory of traffic warnings and citations, to uphold the bypass. The CSC indicated the traffic citations would not have been enough, standing alone, to uphold the bypass (others lower on the list were appointed with the same concern), however coupled with the other untruthfulness, the bypass was justified. Writing in a rare dissenting opinion, Commissioners Stein and Tivnan would have overturned the bypass.
The CSC criticized the BPD for finding untruthful appellant’s statement that he had no prior employment discipline. Appellant’s military record contained a remark regarding being counseled for returning late to base, yet, appellant had received a Good Conduct Medal signifying that he had no discipline. The CSC found it a fair difference of opinion on whether the remark constituted discipline and ruled the appellant’s answer was not untruthful. The CSC also chided BPD for an application question asking: “Is there anything not previously addressed that may cause a problem concerning your possible appointment as a police officer?” finding it too subjective to supply a meaningful basis for a bypass.
Both the majority and dissenting opinions highlighted the tension between the need for police agencies to conduct thorough background checks, possibly including inquiring about CORI information, and the Chapter 151B proscription against asking about arrests that do not result in convictions, and seemingly prohibiting the kind of action taken here by holding the applicant accountable for inaccurate answers to prohibited questions. Commissioner Bowman, writing for the majority, found it unnecessary to resolve this tension, but the minority would have done so by finding the questions were illegal. The majority may have been swayed by the cumulative effect of several police interactions appellant had “forgotten” or thought he did not have to disclose, but the net result was that the bypass finally rested on some police interactions connected to allegations of misconduct when the appellant was in middle school, a result roundly criticized by the dissent.
This is a developing area that will no doubt be exploited by unsuccessful applicants for public safety appointment. Check with your NMP attorney to review applications and when crafting reasons for bypass to ensure you do not end up on the wrong end of this issue.
