Commentary of the Massachusetts Civil Service Commission (Jan-Apr, 2016)

[w]hether, and for how long an appointing authority must tolerate a job vacancy beyond the limit required by law (FMLA) is a matter of its sound discretion and it is not for the Commission to try to second guess that judgment.”

Appellant, a carpenter for the Authority, injured his shoulder in a work-related accident in December 2012.  He went out on leave, and eventually obtained temporary total incapacity benefits.  In what is probably a familiar scenario for many appointing authorities, Appellant reached a point where he had exhausted conservative treatment, and his doctor recommended shoulder surgery.  Despite this recommendation, the Appellant’s doctor could not say when or whether the surgery would return Appellant to working status.  Appellant’s position required significant physical and laborious tasks.  The post-surgery accommodations outlined by his doctor included: “return to work full-time with restrictions…may participate in desk or administrative duties…no lifting, pushing, pulling or carrying with his right arm greater than 5 pounds.”  These accommodations effectively changed his position from that of a laborer to an administrative supervisor, and were inconsistent with his job description.  As a result, the BHA sought to terminate Appellant in March 2014 for inability to perform the job.

On appeal, the Appellant argued his termination was wrongful and retaliatory in nature.  However, he provided no facts in support of this position.  He also contended there was a past practice to leave an injured employee’s position open indefinitely – again, without offering any evidence for this claim.  The Commission found Appellant’s assertions to be speculative in absence of facts. Also, it found that there was no indication that the BHA was acting in bad faith or for any other reason than that it had no indication that the Appellant’s condition would improve to the point that he could return to work.  The Commission dismissed the appeal, pointing out that he still had rights to reinstatement in the event he found himself medically capable of performing the essential functions of his job.

Fire Chiefs Expected To Adhere To High Standards

A fire chief’s severe misconduct constituted reasonable justification to terminate his employment, the Commission ruled in Kevin Farrell v. Town of Danvers, 29 MCSR 144.  Appellant began his career with the Town’s fire department in 1985 and worked his way up to appointment as Permanent Fire Chief in 2011.  Notwithstanding his empirical achievements, Appellant exhibited significant conduct unbecoming of his position.  While serving as Chief, Appellant was arrested for assault and battery and intimidation of a witness, and was involved in several verbal altercations with a town employee whom he had a romantic relationship with.

Appellant’s conduct crossed into termination territory in June 2015.  He and his former spouse had recently sold their home, and were meeting there to jointly empty it of their belongings.  When it became apparent to Appellant that his former spouse was using her new boyfriend’s vehicle to move out her belongings, Appellant called a friend at the Danvers Police Department and requested that the license plate be run to obtain more information about the owner of the vehicle.  The friend obliged and provided Appellant with the owner’s information.

Soon after, Appellant used the unlawfully obtained information in a contentious communication with his former spouse.  Concerned, the former spouse alerted the vehicle owner who in turn notified the Danvers Police Department that his license plate had been run.  An internal investigation ensued, resulting in the Police Chief suspending the officer who ran the plate and the Town Manager being informed of the incident.  Based on the Police Chief’s report, the Town Manager concluded the Appellant had engaged in serious misconduct and, in combination with his previous misconduct, began termination proceedings.

Following a hearing at the appointing authority level, the Town Manager decided there was just cause to terminate Appellant.  The Appellant appealed to the Commission.  While the Commission pointed out that the Town made some significant procedural errors by adding additional reasons for termination following the initial charge letter, and attempting to punish Mr. Farrell for prior misconduct that had been overlooked or previously dealt with through counseling and warnings, it found the initial reasons for termination cited by the Town constituted just rationale for ending Appellant’s employment.  The Commission noted that Appellant’s position required him to adhere to very high standards, which were juxtaposed by his egregious misconduct.  Based on this, and the fact that the Appellant had been put on notice in 2012 following his arrest for domestic assault and battery and witness intimidation that this type of conduct would not be tolerated in the future, the Town was justified in terminating Appellant.

Insults Do Not Amount To An Arrestable Offense

In Paul Zorzi v. Town of Norwood, 29 MCSR 189, the Town of Norwood was justified in suspending a police officer who unnecessarily arrested a motor vehicle passenger for making a rude, but non-threatening, comment.  Appellant, a permanent officer in Norwood for eleven (11) years, worked the 4:00pm to 12:00am shift on Tuesday, May 5, 2015.  Around 7:45pm, Appellant observed a vehicle run a red light and pulled the operator over along a street with heavy traffic and limited space to pull over.  As a result, both vehicles needed to stop in the travel lane.  Upon approaching the vehicle, the Appellant realized the operator was a college classmate.  While they were talking, another vehicle drove by them and a female passenger leaned out the window, yelled at Appellant for blocking the road, and allegedly called him a “prick.”  Appellant immediately terminated his current traffic stop and pursued the other vehicle.  He pulled the other car over and arrested the female passenger for disorderly conduct and disturbing the peace.

Following the arrest, Dedham District Court dismissed the charges against the passenger and she filed a complaint with the Police Department claiming her arrest was unlawful; the Department began an internal investigation.  The investigation concluded Appellant lacked probable cause to arrest the passenger, and that what had likely happened is that the passenger embarrassed Appellant in front of his college friend, and he reacted poorly.  The Norwood Police Chief suspended Appellant for four (4) days.  Appellant sought an appeal from the Town Manager, who upheld the discipline but reduced it to two (2) days.

On appeal, the Commission concluded there was significant evidentiary support to justify the findings of the investigation.  As a police officer, Appellant is reasonably expected to understand criminal and constitutional law, in particular that the passenger’s speech was protected by the First Amendment where it was devoid of any threat or harm.  In combination with Appellant’s previous discipline for excessive force and verbal abuse, the Commission found there was just cause to suspend Appellant.

Approach Department Reorganization With Care

If you are going to reorganize a department or terminate an employee, you must do it properly and for the right reasons.  Michael Owens v. Northampton Housing Authority, 29 MCSR 252.  Since 2008, Appellant served as the Authority’s Director of Administration and Finance.  When the Authority’s Executive Director retired in June 2015, he was replaced by Cara Clifford, who had mostly private industry experience.  At the suggestion of her predecessor, Clifford put forth efforts to reorganize the Authority.  As a result of the reorganization, Clifford eliminated Appellant’s position and terminated him.  She claimed that she was unaware her employees were entitled to civil service rights.  Clifford was later made aware of her employee’s rights, and belatedly provided the Appellant with notice of his possible termination and a hearing/meeting.

Notwithstanding her original lack of knowledge, the Commission saw Clifford’s attempt to reorganize as a thinly veiled effort to simply remove Appellant from her team, rather than a good faith attempt to achieve economy and effectiveness.  Clifford transferred Appellant’s primary duties to his subordinate, then claimed his position was unnecessary where his subordinate was already performing his duties.  Additionally, Clifford created a new “Chief Accounting Officer” position, but did not consider Appellant for the position – despite all his years of public finance experience – because he lacked an accounting degree.  In contrast, Clifford hired another individual who also did not have an accounting degree into a similar “Controller” position, citing that person’s public finance experience as more important than an accounting degree.  Given the evidence, the Commission concluded this was not a bona fide reorganization attempt and there was no just cause to terminate Appellant’s employment.

BYPASS DECISIONS

Reviewing Exam Scores: Statutory Right to Review Answers that Qualify As Essays

There were a series of decisions this period that dealt with requests by bypassed individuals to review exam scores: Wayne G. Clarke v. Human Resources Division and Boston Police Department, 29 MCSR 1; Kenneth A. Sousa v. Human Resources Division and Boston Police Department, 29 MCSR 15; Sean M. Wilbanks v. Human Resources Division and Boston Police Department, 29 MCSR 22.  In each of these decisions, the Commission confirmed that candidates have a clear statutory right to a substantive review of exams qualifying as essays.

The first of these cases was Clarke.  As part of his appeal, Clarke requested a review of his marked answers, claiming his scores were lower than he deserved.  HRD denied his request on the grounds that candidates have no right to a review of their answers; they are only entitled to a review of the mathematical computation of their final score.  The Appellant disagreed, and sought intervention from the Commission.  The Appellant argued that M.G.L. c. 31, §22-24 entitles candidates to a review of their exam answers from HRD.  The Commission agreed and concluded that the In-Basket test qualified as an “essay” under the scope of the statute, and was subject to review.  Consistent with the statute, the Commission determined that results of this test may be appealed to the Commission after a review by HRD, and that contrary to HRD’s position, the review is not merely computational.  In this particular case, however, where HRD had not yet performed its review, the Commission declined to substitute its judgment for that of the HRD, and remanded the appeal to HRD to administer the statutory review.

Similarly in Sousa, the Commission found the In-Basket exam duly qualified as an essay in the purview of M.G.L. c. 31, §22-24, and that the Appellant was entitled to a review of his answers.

In Wilbanks, the Commission upheld Appellant’s right to review his exam answers that qualified as essays, however, the Appellant also requested a review of his Oral Board scores.  The Commission declined this request, stating that in contrast to the essay scores, the Oral Board scores are not reviewable where there was no statute authorizing such a review.

Of significance in these decisions is that the Commission distinguished the statutory language regarding review of exam results as different from the obligation presented in the recent decision from the Supreme Judicial Court in Mallock v. Town of Hanover, 472 Mass. 783 (2015).  In that decision, “HRD’s duty to ‘receive’ bypass reasons did not imply any intent that HRD make a substantive ‘review’ and issue a ‘decision’, such as provided [in M.G.L. c. 31, §§22-24].”  HRD did request that the Commission reconsider its decisions in these cases, but its Motion for Reconsideration was denied (29 MCSR 97), and the Commission upheld its decision requiring HRD to provide Appellants with a substantive review of their exam scores.

Veterans’ Timeframe For Eligibility The Same Notwithstanding Make-Up Test

In Jillian Bowles v. Human Resources Division, 29 MCSR 37, the Commission upheld HRD’s determination that candidates participating in a make-up civil service exam are subject to the same time frame of eligibility as those who took the regularly scheduled exam.

In June 2013, HRD administered a civil service examination for the position of police officer, which Appellant was unable to take as she was on active military duty.  She took a make-up exam in June 2014.  Based on the statements of her proctor and language from the civil service website, the Appellant believed her name would remain on the police officer eligibility list for two (2) years.  As a result, when HRD administered the next police officer examination in April 2015, Appellant did not sign up for or take the test.  Appellant’s name was subsequently removed from the eligible list in June, 2015.  HRD denied Appellant’s request for another make-up examination, asserting that she was subject to the same eligibility time frames as the June 2013 exam takers, and where she had been able to participate in the April 2015 examination but chose not to, she did not qualify for a make-up test.

The Commission agreed with HRD, finding the language offered by HRD, while slightly ambiguous, sufficiently informed candidates, including the Appellant that individuals who took the make-up exam are subject to the same time frame of eligibility as candidates who took the June 2013 exam.  It also distinguished Appellant’s case from Section 25 of the Civil Service statute, which allows HRD to extend the eligibility of candidates already on a list that are on active military duty when their eligibility would expire.  Where Appellant was not on active military duty at the time of the April 2015 exam, the Commission upheld HRD’s decision not to offer her a make-up exam. 

Limited Resources Do Not Absolve HRD From Meeting Statutory E & E Obligations

There were two decisions this period dealing with what the Commission identified as a failure of HRD to meet their statutory obligations in terms of providing Education and Experience (E & E) credit.  In both cases, the decisions by the Commission seemed to reprimand HRD for prioritizing administrative convenience over civil service rights.

The Appellant in Nora L. Baston v. Human Resources Division, 29 MCSR 62, began employment with the Boston Police Department in 1996.  She was promoted to Sergeant in 2005, and soon after promoted to Deputy Superintendent, a non-civil service position in 2007.  In 2014, Appellant took the promotional exam for Lieutenant.  The Education and Experience (“E&E”) component of the exam awarded candidates for service in relevant positions.  One of the E&E categories offered points for “[e]xperience in the specified department…in Police Captain or higher position.”  Since the role of Deputy Superintendent ranks higher than that of Police Captain, Appellant requested E&E credits for her time in that position.  HRD denied Appellant credits for her Deputy Superintendent role where it was not a civil service position.  Instead, they awarded Appellant credit in the role of Sergeant, a position providing much less points than that of Police Captain or higher, for the years 2005 to 2014.

The Commission pointed out in its decision that it is undisputed that civil service law provides experience credit to police officers serving in civil service and non-civil service positions or communities.  The Commission rejected HRD’s contention that they did not comprehend the Department’s command structure, and that investigation into the structure would be overly arduous and burdensome.  The Appellant’s appeal was allowed and HRD was ordered to adjust the Appellant’s examination score to give proper credit for her service in the position of Deputy Superintendent.  While the Commission was mindful of the limited resources impacting HRD’s operations, they pointed out that HRD still needs to meet their statutory obligations, especially when their failure to do so impedes an officer’s career advancement and lowers their placement on an eligible list.

In Michael Goggin v. Boston Police Department and Human Resources Division, 29 MCSR 78, the Commission reversed HRD’s refusal to award educational credits to a candidate for an associate’s degree, where he completed more than the necessary requirements for an associate’s degree in his nearly complete bachelor’s program.  Appellant applied for and passed BPD’s promotional examination to Sergeant, and provided information for the Education and Experience (“E&E”) component.  Although BPD only conferred E&E points for completed degrees and not individual semester hours, Appellant submitted his undergraduate transcript on the basis he well exceeded the credits for an Associate’s degree, and should be treated as such since his institution did not confer Associate’s degrees.  However, BPD rejected Appellant’s request, maintaining their policy to only award credit for completed degrees.

HRD argued they were unqualified and lacked the expertise to “review course credits…and determine whether [Appellant’s] courses appropriately comprise an Associate’s degree program in Appellant’s majors.”  While acknowledging the discretion endowed in HRD to develop civil service exams, here the Commission did not agree with HRD’s proffered justification to reject Appellant’s credits.  Rather, the Commission found that to deprive the Appellant of any educational credit contradicts the basic merit principles of the civil service system.  Further, they argued that HRD can effectively and rationally determine educational credits to candidates like Appellant, without imposing an undue burden on the administrative process.  Accordingly, the Commission allowed the appeal and ordered HRD to adjust Appellant’s educational credits to that of an Associate’s degree.

OTHER: PRACTICE AND PROCEDURE DECISIONS

Reemployment Cannot Be Conditioned On Results Of Drug Or Medical Testing

Firefighters or police officers separated from employment due to layoffs cannot be required to undergo a medical evaluation, including a substance abuse test, as a condition of reemployment.  In Re: Request by Nicholas Suneson and Three Others to Investigate The City of Fall River Fire Department,[1] 29 MCSR 56 (see also 28 MCSR 564 (2015)).

In July 2014, Appellant and three (3) other firefighters were laid off from the Fall River Fire Department, and subsequently reinstated in June 2015, with the condition they submit to a medical evaluation and substance abuse test.  Appellant and the others requested an investigation into the conditional requirements being placed on their reinstatement.  Since the Petitioners were being reinstated to the same department, the request fell under the purview of M.G.L. c. 31, §39, rather than §40, which deals with reinstatement from a state-wide re-employment list.

Following a show cause hearing back in October, 2015, the Commission found that the HRD guidance on the issue was unclear, including whether or what the difference is in what can be required of an individual being reinstated to the same department (G.L. c. 31, §39) and individuals being restored to positions in a new department via the statewide re-employment list (G.L. c. 31, §40).  Rather than open an investigation, the Commission asked that HRD update its guidance to answer the question “If a community reinstates a Firefighter or Police Officer pursuant to G.L. c. 31, §39, may the hiring community require a new medical, physical abilities test, and/or psychological evaluation?  May a new background investigation be performed?”

HRD responded to the Commission’s request for clarification with its interpretation of Section 39:  “A municipality may not require a medical, physical ability test and/or psychological examination as a condition precedent to reinstatement pursuant to Section 39 for an employee separated from employment for reasons other than disability retirement.”  The Commission agreed with HRD’s interpretation, and since all of the Petitioners had already been reinstated at this point, the Commission determined that no further investigation was warranted.

[1] Full caption is: “In Re: Request by Nicholas Suneson and Three (3) Others To Investigate ‘The City of Fall River Fire Department’s requirements that laid off Fall River firefighters submit to a medical evaluation, including substance abuse test, as a condition of re-employment.’”