Commentary of Massachusetts Civil Service Commission Decisions (May – Aug, 2015)

[ten] to [fifteen] factors” having to do with “community involvement and professionalism,” that the Appellant should be bypassed.

Upon receiving this recommendation, and learning there was a bypass involved, the Town Manager reviewed the Appellant’s file and spoke with supervisors. He concluded that Sherman was not ready to be a Sergeant. He advised the Appellant he was being bypassed based on his interview, a review of his personnel file and a discussion with his immediate supervisor. The bypass letter included the following: “Specifically, the committee found that some of your answers were vague. You did not demonstrate a clear understanding of leadership qualities such a leading by example and command presence. Your supervisor noted that you had difficulty following through on cases and that you needed supervision.”

The Commission found that the interview process in Sherman was flawed because it was too subjective and that the evaluation of job performance was “possibly flawed,” noting that the Department did not do annual performance evaluations.  Nonetheless, the Commission found that there were sufficient reasons to bypass the Appellant because of the independent judgment of the Department’s senior commanders that the Appellant needed to improve critical aspects of his job performance that were essential to being a supervisor and their view that the other applicants were more ready to be sergeants. Critical to the Commission’s decision was the lack of evidence that the judgments of the supervisors were based on bias or some other unlawful predisposition against the Appellant. The Commission noted that the Appellant had not even alleged that the bypass decision was politically motivated.

The Court wrote that “procedural flaws conducive to subjective or arbitrary decision making could be a ‘red flag’ signaling that a bypass decision resulting from flawed procedures was motivated by political considerations, favoritism or bias.” However, it noted that the Commission had considered the risk that such improper motivations could have affected the bypass decision and found no evidence to support it. The Court determined that there was substantial evidence to support the Commission’s conclusion, particularly since the bypass was not based solely on interview performance. The Court wrote, “[A] promotional decision may be reasonably justified on the merits, even where the appointing authority uses flawed procedures for selecting candidates…. Where the appointing authority had a reasonable justification on the merits for deciding to bypass a candidate, and the flaws in the selection process are not so severe that it is impossible to evaluate the merits from the record.“ In short, the Town’s bypass decision was upheld because, notwithstanding flaws in the selection process, the Town proved reasonable justification for its determination that the Appellant was not ready to assume the duties of a sergeant.

In Malloch and Sherman, the Court upheld the HRD’s delegation to cities and towns of the issuance of bypass and selection letters.  In both cases, the Appellants cited language in M.G.L. c. 31, section 27 that states that a promotion involving a bypass does not become effective until an appointing authority’s written statement of reasons for the bypass “has been received by [HRD]”. The Appellants argued that “received” meant reviewed and approved. Reversing a Superior Court decision that agreed, the Court ruled that the delegation was both permissible and practicable. It noted express statutory language that allowed delegation of HRD’s administrative functions “so far as practicable” to cities and towns. The Court pointed out that the plain meaning of “received” did not require HRD to review and approve the reasons. The Court further noted that the civil service statute expressly gave the Civil Service Commission the authority to review and approve reasons for a bypass while not clearly providing the same authority to HRD.

Appeals Court Affirms Superior Court Decision Finding Commission Exceeded Its Authority When It Modified A Termination Into A Nearly Two Year Suspension

In our 2014 commentary, we reported on several decisions issued by the superior court which chastised the Commission for ignoring the limits on its authority and “[d]emonstrating a complete lack of recognition that the power to impose penalties ab initio belongs to the Town.”   Town of Maynard v. Civil Service Commission, Superior Court No. 13-01602 (2014); see also New Bedford Airport Commission v. Civil Service Commission and Boston Police Department v. Tinker.  Several of the cases profiled had to do with what seemed to be a Commission tendency to convert terminations into very long term suspensions.  Not happy with the superior court’s decision to reverse the Commission decision in his favor, the terminated officer in Maynard, Tony Rego, appealed that court’s decision.  We are happy to report that in a decision issued earlier this summer, the Appeals Court agreed with the superior court’s analysis and affirmed its decision.  Town of Maynard v. Rego, 87 Mass.App.Ct. 1133 (2015).

In Town of Maynard v. Civil Service Commission, the superior court overturned the Civil     Service Commission’s decision to modify the Town’s discipline of a police officer from       termination to a twenty-two month suspension. Because the Commission agreed that the officer had committed the violations alleged, the court found that its decision to disregard the Town’s chosen discipline ignored the limits on its authority and usurped the powers assigned by law to the Town. “It appears not to have occurred to the Commission that, as a matter of common sense, if misconduct is sufficiently serious to warrant the suspension of a police officer in a small police department for close to two years . . . it is sufficiently serious to warrant termination.”

The Appeals Court agreed, and citing the language quoted above, confirmed that the Commission had exceeded its authority in reducing the discipline imposed.  In fact, the Court stated that the superior court judge “aptly noted” that misconduct sufficiently serious to warrant a suspension of nearly two years is sufficiently serious to warrant termination.  The SJC denied further appellate review on September 2, 2015, making the Appeals Court’s decision on this matter final.

Superior Court Confirms That Reckless Off-Duty Conduct Is Sufficient To Uphold Discharge Of Police Officer

In June, 2015, a superior court judge upheld the Commission’s denial of a Falmouth Police Officer’s appeal of Everton v. Town of Falmouth, 26 MCSR 488 (2013), finding that the Commission reasonably determined that the Falmouth Police Department had just cause to discharge Everton.  Everton v. Town of Falmouth, Superior Court No. 13-4382-D (2015).[1]  The court’s decision affirms that police officers are required to comport themselves in exemplary fashion, especially when it comes to exhibiting self-control and adherence to the law, whether on or off duty.  The fact that Everton’s behavior occurred off-duty and out of uniform did not excuse his excessive speed, erratic driving, lack of judgment and failure to obey motor vehicle laws which led to a risky high speed chase, endangering the safety of another FPD officer and members of the public.  The court found that the hearing officer’s and Commission’s decisions were sound, “especially in light of the heightened expectation attributed to police officers to behave themselves in accordance with the law and the public interest.”

Bypass Decisions

402A Preference Does Not Apply Where Accidental Death Benefits Are Granted By Special Legislation Rather Than Proof That Parent’s Death Was Caused By An Injury Suffered In The Line Of Duty

In Cecieta v. Human Resources Division, 28 MCSR 352, the Commission declined to award a Section 402A family preference to a candidate for appointment as a Saugus firefighter where the Appellant was unable to prove, by a preponderance of the evidence, that his father’s death was caused by an injury suffered in the line of duty.  Massachusetts G.L. c. 31, §26, as amended by Chapter 402A of the Acts of 1985, provides as follows:

Notwithstanding any other provisions of this chapter or of any law, a son or daughter of a firefighter or a police officer who passes the required written and physical examination for entrance to the …fire service…shall have his or her name placed in the first position on the eligible list…if…in the case of a firefighter, such firefighter while in the performance of his duties and as a result of an accident while responding to an alarm of fire or while at the scene of a fire was killed or sustained injuries which resulted in his death…

The Appellant’s father was a firefighter for the Town of Saugus.  On November 24, 1985, he was struck by a car in the performance of his duties as a firefighter and sustained serious injuries to his leg.  He was subsequently determined to be disabled and retired in 1987 under M.G.L. c. 32, §7 (accidental disability retirement).  Several years later, in March, 1994, he suffered a heart attack and died.  The Appellant’s father had first sought medical treatment for heart disease in October, 1993.

After his father’s death, the Appellant’s mother sought survivor’s accidental death benefits under G.L. c. 32, §9.  She did so on the grounds that her husband died as a result of injuries sustained in the line of duty.  Two of her husband’s doctors provided opinions supporting this claim.  These opinions were contradicted by the opinions of doctors designated by the Public Employee Retirement Administration who concluded that there was “no relationship between the fractured leg and ischemic heart disease.” Based on a review of all of the available information, the Saugus Retirement Board denied Mrs. Cecieta’s claim. The family appealed.  The matter was heard by a DALA administrative magistrate who issued a decision consistent with the Retirement Board’s decision.  In May, 1996, the magistrate’s decision denying accidental death benefits was unanimously adopted by the Contributory Retirement Appeal Board (CRAB).  Notwithstanding this determination, in 1996, the Legislature passed special legislation directing the Saugus Retirement Board “to pay Accidental Death benefits to the widow and children of William Cecieta.”

In reviewing whether the Appellant was entitled to a Section 402A preference, the Commission focused on the question of whether the Appellant’s father died of heart damage caused by an injury suffered in the line of duty.  Like the Saugus Retirement Board and CRAB, the Commission found that the evidence did not support such a finding.  Further, it determined that the 1996 special act by the Legislature was limited to the payment of death benefits, and therefore not determinative of whether the statutory preference should be granted.  Where the act was silent of the issue of Chapter 31 rights, the Commission concluded that the legislation did not warrant disregarding the preference’s clear statutory requirements.  Appeal dismissed.

Lack Of Medical Control Justifies Bypass Even When Appointing Authority Would Otherwise Have Appointed Candidate

The Commission’s decision in Hogan v. Town of Ludlow, 28 MCSR 337, addresses the unique situation of a candidate for original appointment as a firefighter who the Town is forced to bypass based on the candidate’s inability to obtain medical control at the local hospital.  “Medical control is required by both the [Massachusetts Office of Emergency Medical Services (OEMS)] regulations and statute in order for an EMT to be allowed to work at the ALS level,  Medical control also gives the EMT authorization to practice in a designated affiliate hospital.”

In Hogan, Ludlow had completed its background check and interview of the Appellant and offered him a conditional offer of employment for the position of Firefighter-Paramedic.  Even with this conditional offer of employment however, and a request from Ludlow’s Fire Chief, the doctor in charge of granting medical control at Mercy Hospital, the Ludlow Fire Department Affiliated Hospital, refused to grant the Appellant medical control at Mercy based on two incidents that had occurred in February, 2011, while he was working as an EMT.  As a result, Ludlow’s hands were tied – without medical control at Mercy, Hogan did not meet the necessary qualifications for the position.  He was bypassed.

The Appellant argued that Ludlow was required to investigate the doctor’s reason(s) for refusing to grant him medical control and that the Town should not be allowed to just accept the denial without determining whether the doctor’s decision is adequately supported.  Ludlow disagreed.  The Town argued that it was not required to confirm the reasons for the doctor’s denial and that the Chief had already done a further review of the matter, including visiting and speaking with the doctor, but the doctor was solely responsible for granting medical control at the hospital and there was nothing more it could do.

The Commission agreed with the Town and that there was not much more (if anything) that Ludlow could have done under the circumstances.  The Commission noted that it was not up to it (or Ludlow) to determine whether the doctor’s refusal to grant medical control to the Appellant was appropriate.  The Commission found that the Town/Chief had done a reasonably thorough review of the situation and that despite the Chief’s advocacy on the Appellant’s behalf, the doctor in charge of granting medical control at Mercy would not change his position.  Acknowledging that there did not appear to be a precedent for upholding the bypass of a Firefighter-Paramedic candidate for lack of medical control, the Commission likened its decision to cases where it has upheld the termination or suspension of an employee who loses a license or certification essential to his or her position.  “Because medical control is a requirement for the duties of a Firefighter-Paramedic and because Mr. Hogan had been denied medical control at Mercy, the LFD Affiliated Hospital, he is unable to meet the qualifications for the job and Ludlow had reasonable justification to bypass Mr. Hogan.”

 Methuen Police Department Bypass Trilogy

The first trilogy of this commentary focuses on three bypass cases from the City of Methuen:  Phillips v. City of Methuen, 28 MCSR 345; Cote v. City of Methuen, 28 MCSR 369; Dwinells v. City of Methuen, 28 MCSR 377.  The bypasses all resulted from the same round of hiring, and while each is interesting in its own right, there were significant issues with the selection process that apply to all three cases:

• The Commission was concerned by the fact that so many of the candidates (approximately one-quarter) that received conditional offers of employment had connections to the Police Department and/or employees in other City departments, and that the City had not taken any extra precautions to assure all candidates that the process was fair and that they would receive equal consideration; and
• The Commission was troubled and upset by the fact that the interview panelists had assigned the highest points to candidates that stated that they would apply one set of rules to strangers and a different, more preferential set of rules to friends and family members.

Although the Commission did not end up overturning all of the bypasses as a result of the above, the City certainly did not do itself any favors and likely opened itself up to greater scrutiny by the Commission.  This was especially true in Phillips.  In Cote and Dwindle, the Commission denied the bypass appeals, but not without expressing its concerns over the process and two concurring opinions by Commissioner Stein which highlighted the “systematic errors in the selection process that Methuen has used in this hiring cycle.”

Phillips v. City of Methuen, 28 MCSR 345 (2015)

In Phillips, the Commission reversed the bypass of a candidate for original appointment to the Police Department after finding several aspects of the hiring process employed by Methuen to be troubling and ultimately concluding that the reasons given in support of the bypass were either silly or inconsistent with the law.  Specifically, the City claimed that Phillips was insincere and “lacked discretion” during his interview because in response to one of the questions he said that he would apply the same standards in a drunk driving arrest situation whether he was dealing with a stranger, a friend, or a family member.  In contrast, the evidence showed that the interview panel members – all members of the Methuen police department – heaped high praise (and higher scores) on candidates who said that they would arrest the stranger, but not a family or family member.  These individuals were recognized by the panel for their understanding of “discretion.”

Chairman Bowman, the Commission Hearing Officer in this case was not convinced by the City’s attempt to explain how it used the drunk driving scenario to assess the candidates’ “discretion.”  He found that there was no valid basis for awarding higher scores to candidates who said they would apply one set of rules to strangers and one set of rules to family and friends.  “In short, bypassing candidates for providing answers that are consistent with the law, while appointing others who would show “discretion” toward friends and family members cannot stand – and warrants intervention by the Commission.”  The Commission also found that the City’s decision to reopen its background investigation of the Appellant – after he had filed his bypass appeal – was inappropriate, and, in the hearing officer’s eyes “casts a shadow over the entire selection process as it relates to Mr. Phillips.”  The City’s initial background investigation had shown that the Appellant had no criminal record, no driving citations and a positive credit rating.

The Commission ordered that the Appellant be placed on all future Certifications for the position of Methuen Police Officer until he is appointed or bypassed.  It also ordered that if he is appointed, his seniority date be adjusted to match those appointed in the most recent round of hiring.

Cote v. City of Methuen, 28 MCSR 369 (2015)

In Cote, the Commission found that although the overall selection process was flawed, the City’s decision to bypass Mr. Cote based on his noncommittal responses regarding the position and the uncertainty about whether he would be available for the job at the pertinent time was reasonable.  At the time he was interviewing for the position with Methuen (Appellant’s home town), the Appellant was committed to a three year contract with the Washington D.C. Metropolitan Police Department.  Contrary to the Appellant’s claims, the Commission did not find that the City’s decision in this case was made in retaliation for having filed an earlier bypass appeal in 2009, or that it was based on personal or political bias 9although this was considered given the overall process).  In fact, the City had let the Appellant interview over Skype, something usually only offered to candidates on active military duty.

In his concurring opinion, Commissioner Stein expressed that while he agreed that bypass was appropriate given the specific facts of this case, i.e., the Appellant had a three year commitment in D.C. and was not currently available to perform the duties of a Methuen police officer should he be selected, he was not as convinced that it would be consistent with basic merit principles to bypass a superior candidate based on “an interview response and speculation that he or she is not ‘committed’ to taking the job.”

Dwinells v. City of Methuen, 28 MCSR 377 (2015)

In Dwinells, the Commission found that the City did not act unreasonable in bypassing Mr. Dwinells, where he had an admittedly weak interview and failed to adequately explain or remove a questionably racist posting on his Facebook page.  Although the posting had been made by an African American friend and was not intended to be offensive, the Appellant acknowledged that some people might find it offensive.  Notwithstanding that acknowledgement, and the fact that he had previously not been selected for a position with the Essex County Sheriffs’ Department due to the same online material, the Appellant had not removed the photo and caption from his Facebook page.  Even if not indicative of Mr. Dwinells being a racist, the Commission found that failing to remove the photo and caption demonstrated poor judgment on the Appellant’s part, and that the City was justified in bypassing the Appellant for poor judgment.

Commissioner Stein concurred in the decision as it relates to the poor interview performance, but clarified that he would not have found the Appellant’s handling of the social media post alone sufficient to support a bypass.  He noted that there was no evidence that either the Appellant or the individual who posted the material was a racist and that the mistake in this case is Dwinells’ neglect in failing to remove the material.  He compared the severity of the act (or failure to act) in this case to other Commission cases where individuals have personally and intentionally engaged in racial or vulgar social media postings, or other clearly unacceptable behavior.  His concurring opinion cautions against reading too much into the Commission’s decision or using it as a guideline for how social media should be handled by appointing authorities in the future.

Discipline Decisions

Commission Questions Whether Department of State Police’s Administrative Discharge Based On Loss Of Firearm License Circumvents Civil Service Rights

In a trilogy of decisions involving the Department of State Police and its administrative discharge of troopers without a Trial Board hearing after the troopers’ firearms license had been revoked, the Commission expressed “serious concerns” that the Department’s actions “may have circumvented the civil service right[s] of a Trooper to notice and a pre-deprivation hearing prior to termination of his employment.  Gately v. Department of State Police, 28 MCSR 294; McGarry v. State Department of Police, 28 MCSR 305; Walsh v. State Department of Police, 28 MCSR 309.  In all three cases, the troopers were administratively discharged after the revocation of their gun licenses.  According to the Department, Department Article 5.4.5 requires troopers to have an unrestricted firearms license, and because they lacked a valid firearms license, the troopers were properly disqualified from being State Police Troopers under G.L. c. 22C, s. 43.

In addition to the Commission’s concern about the lack of a Trial Board, red flags were raised by the inconsistent positions taken by the Department in different forums, which, if accepted, would leave the Appellants without any recourse or due process options.

Under Massachusetts law, troopers who have at least one year of service with the State Police and have charges preferred against them, are to be tried by a Trial Board.  If a trooper is aggrieved by the decision of the Trial Board, he or she has a right to appeal the Board’s decision to the Commission under G.L. c. 22C, s. 13.  In these cases, there were no Trial Boards, and therefore no Trial Board decisions to appeal.  As a result, the Department filed a Motion to Dismiss in each case and argued to the Commission that it lacked authority to hear the former troopers’ appeals.  At the same time, however, in cases filed by the same parties in Massachusetts District Court and Massachusetts Superior Court, the Department asserted as affirmative defenses that the troopers failed to exhaust their administrative remedies (i.e., an appeal to the Commission) and that the troopers have the right to and are pursuing appeals with the Civil Service Commission.

Notwithstanding its concerns, the Commission, in two of the three cases (McGarry and Walsh), did not make a decision one way or another regarding the Department’s decision or its authority to hear the appeals.  Rather, it decided that “in the interest of administrative and judicial efficiency, and in an effort to avoid conflicting dispositions,” that the appeals would be dismissed effective thirty (30) days after the final judgment in the superior court cases.  “Within thirty (30) days of the Superior Court’s dispositive decision, either party may file a Motion to Re-open the instant appeal for such further consideration by the Commission as may appear appropriate.”

In a concurring opinion, however, Commissioner Stein states that, “in [his] view, the authority to issue and enforce ‘orders’ under Section 43 of Chapter 22C or revoke a license to carry under Chapter 140, is not necessarily inconsistent with the Appellant[s’] claim that [they] are entitled, as a matter of statute and due process, to a Trial Board and Commission review of action taken in reliance on decisions under those other laws that results in adverse employment action.” He concludes by stating that the Appellants’ rights and procedural claims should not be discounted based on concerns regarding the level of review to be performed by the Commission.

In Gately, the Commission found that the circumstances of that case warranted a different result, and voted to dismiss the appeal.  Although the Department had similarly revoked Sean Gately’s gun license and administratively discharged him for being disqualified, Mr. Gately had subsequently retired from State service with a retroactive retirement date of June 17, 2014 – a date prior to his August, 2014 discharge.  As a result, the Commission found that Gately’s retirement made “any discipline issued by the Department over which the Commission has jurisdiction a nullity.  For Civil Service purposes, any such discipline is moot as the Appellant retired effective prior to his termination.  Therefore, the Appellant could not have been aggrieved by an action of the Department.”

Other

Déjà vu: DOC and Promotional Examinations For The Position Of Captain

In Breslin v. Department of Correction and Department of Personnel Administration, Case No. G-1329 (1988), the Commission was asked to intervene to address the lack of promotional exams for the position of Assistant Deputy Supervisor (predecessor title to Captain) at the Department of Correction (DOC).  At the time, the position was one of the rare public safety positions for which HRD had never administered an examination.  The Commission concluded that the failure to hold an exam for this position was “indefensible” and “represented a serious undermining of the civil service system.”  The Commission ordered that an examination be held within six (6) months.

Twenty-seven years later, the Commission is once again being asked to intervene to address the lack of promotional exams for the same position.  Three permanent Lieutenants at the DOC filed a petition with the Commission requesting an investigation into why HRD (or DOC) has never held a promotional examination for the position of Captain (previously 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 (Response to Request for Investigation).  In response, a group of seven (7) individuals currently serving as Captains (in a provisional capacity), filed a petition asking to intervene in the matter.  All parties were present/represented at the show cause hearing and submitted briefs to the Commission on the issue.

Because no test has ever been held for the position of Captain, all 88 of DOC’s current Captains have been provisionally promoted (as opposed to permanently promoted).  Although provisional promotions are legal, this means that although the Captains have civil service permanency in some lower title, they have no permanency in the position of Captain.

The issue of provisional appointments and promotions is not new.  The Commission has wrestled with what it refers to as the “plight of the provisional” for many years and in many of its decisions.  For almost two decades, hundreds of non-public safety positions in the Commonwealth have been without qualifying exams and eligible lists resulting in a situation where the hiring and promotion of most non-public safety service employees can only lawfully be accomplished through provisional appointments and promotions.  However, although non-public safety positions have been struggling with this issue for years, civil service examinations have continued to be held for public safety positions (police and fire).  As the Commission noted in its response, “[a]lmost all public safety positions that fall under the civil service law in Massachusetts, both in state government and across those cities and towns that are subject to civil service law, are filled via permanent appointments and promotions.”

In response – and in support of maintaining the status quo – DOC argued that HRD has never offered an exam for the DOC title of Captain and that one has not been necessary because the process currently in place for provisional promotions satisfies the basic merit principles under the civil service law and rules.  It outlined a comprehensive process for promotion to this position which requires that interested candidates for Captain must have served at least one year as Lieutenant and involves several layers of review by different groups of people.

HRD argued that as with exams for non-public safety positions, budget constraints have impacted its ability to offer this exam.  It estimates that it would cost approximately $90,000 just to develop and administer an exam for this position.  It also noted that there is little harm to the individuals who end up provisionally promoted to the position of Captain because they are all permanent, tenured civil service employees and they retain their right to their lower title.  It pointed out however, that it has the authority to delegate to DOC the authority to conduct its own examination or assessment center for this position.  In its argument, it also raised the need for Commission intervention should an exam be required/offered because of the possibility that some of the current provisional Captains could find themselves unseated after many years on the job, if they fail to score high enough.  This is what the Intervening Provisional Captains were also concerned about.  They requested that all current Provisional Captains be made permanent and that the examination only be required for future promotions.

In its Response, the Commission expressed concern that in the 34 years that the position has existed, no examination has ever been administered – even after its directive in Breslin that an exam be held within six (6) months.  In addition, unlike the complex situation that exists with provisional appointments in non-public safety positions, the Commission pointed out that this is the only public safety position for which no exam is offered.  Given this, the Commission concluded that “a resolution here, regarding one (1) public safety position that, quite frankly, stands out like a sore thumb, would appear to be much simpler.”

While not unsympathetic to the financial concerns of HRD and DOC, the Commission concluded that “the failure to give promotional examinations for thirty-four (34) years has more to do with the unspoken desire to make promotional appointments to Captain free of the constraints associated with making permanent appointments from an eligible list.”  And while the Commission expressed some understanding of this position from a public policy perspective, it concluded that such a position is not consistent with existing civil service law and rules.  “Unless 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.”

The Commission proposed its own possible solution, but ultimately gave HRD and DOC ninety (90) days to propose the most cost effective and efficient means of ensuring compliance with the law.  It did mandate, however, that any proposal include a plan to protect the rights of the provisional, long-term captains already serving in the position.  A status conference was scheduled for September 21, 2015.

Home Rule Petition Trumps c. 4, §4(b) As A Way Out Of Civil Service

In February, 2014, the Town Council in Franklin, Massachusetts voted to exempt all positions in the Fire Department from civil service.  As a result of this vote, both the Town and its firefighters were under the impression that the Fire Department had been removed from Civil Service.  Several months later, it was discovered that the Fire Department had actually entered civil service by a 1950 ballot question, not by a vote of Town Council.  As a result, the Council’s vote had not actually removed the Fire Department from civil service.  M.G.L. c. 4, §4(b) provides that revocation of a Town’s acceptance of civil service is accomplished “in the same manner it was accepted….”

Rather than put the issue of revocation from civil service on a ballet question, the Town opted to pursue a home rule petition from the state legislature.  Members of the Fire Department did not feel that this was sufficient and argued that successful passage of a ballot question was necessary to perfect the revocation.  Twelve (12) members of the Fire Department filed a petition with the Commission seeking clarification on the Town’s path out of civil service.  In Re: Request for Investigation Against the Town of Franklin By Petitioners James Haggerty and Eleven (11) Others, 28 MCSR 296 (Response to Request for Investigation).[2]

At the show cause hearing, the Commission asked that HRD, to the extent possible, provide clarification on this issue for the parties and to the Commission.  HRD opined that the Town has two paths to remove the Fire Department from civil service: “(1) Through revocation of the Town’s acceptance of civil service coverage ‘in the same manner as it was accepted…’ pursuant to MGL Chapter 4, §4(b); or [2] Successful passage of a home rule petition to the legislature.”  HRD took the position that a home rule petition “trumps” the c. 4, §4(b) route for removal from civil service.

In its Response to the Request for Investigation, the Commission determined that the clarification sought by the Petitioners did not require an investigation and that “to the extent that the Commission can provide clarity to the Town – and the civil service community in general – we concur with the clarifications provided by HRD in regard to the ‘opt out’ procedures” for rescinding civil service.  The Commission’s “clarification” on this issue confirms and provides some authority for what most had already understood to be true – a home rule petition trumps all as a method of revoking civil service.

[1] Melissa R. Murray of Collins, Loughran and Peloquin P.C., represented the Town of Falmouth.

[2] Melissa R. Murray of Collins, Loughran and Peloquin P.C., represented the Town of Franklin.