Massachusetts Civil Service Reporter
Management Commentary
by
Philip Collins, Esq. and Melissa R. Murray, Esq.
Collins, Loughran & Peloquin, P.C.

 

IN THE COURTS

Appeals Court Affirms Boston Police Drug Testing Decision

In Thomas, et al. v. Civil Service Commission and Boston Police Department (October 7, 2016), the Appeals Court was tasked with reviewing the Superior Court’s affirmance of a Civil Service Commission decision that upheld the terminations of four police officers and reinstated six other officers retroactive to October 21, 2010 (the date the Commission proceedings started).  The Superior Court affirmed the Commission’s decision but modified the back-pay and benefits awarded the six reinstated officers.  Both the Boston Police Department and the four terminated officers appealed the Superior Court’s decision.

The Appeals Court agreed with the lower court’s decision and its determination that the Commission had carefully and precisely analyzed each officer’s individual case and had not relied solely on the positive hair test result.  The Court upheld the Commission’s determinations regarding termination and reinstatement of the officers.  The only area where both courts found the Commission’s decision required some modification was the remedy due the six reinstated officers.

In its decision, the Commission had determined that unique circumstances (i.e., unusual delay, lack of political or improper motive, and the failure of some officers to attempt to find new employment) warranted a modification of M.G.L. c. 31, § 43.  Section 43 provides that when the Commission reverses a decision of an appointing authority, “the person concerned shall be returned to his position without loss of compensation or other rights.” In modifying the Commission’s decision, the lower court judge held that when the language of a statute is as clear and unequivocal as the language of §43, no exceptions, regardless how worthy, can be applied. The Appeals Court agreed, and affirmed the Superior Court’s decision affirming the Commission decision but modifying the back-pay and benefits award so that the reinstatement was retroactive to each officer’s individual termination date, rather than October 21, 2010.

DISCIPLINE DECISIONS

Commission Splits Over Whether To Uphold Discharge Or Modify To A Suspension

In a 3-2 decision, the Commission voted to affirm the discharge of a City of Brockton DPW junior foreman accused of stealing time and failing to prevent the theft of City property.  Johnson v. City of Brockton, 29 MCSR 425.  On the issue of stealing time the Commissioners all agreed – the Appellant’s time and attendance violations were serious and warranted harsh discipline. The Appellant had, on multiple occasions over a two-week period, failed to work his full shift (4:00 p.m. to midnight), but had accepted his full pay, including for the hours not worked.  The Appellant’s pay had been docked for leaving work early on three separate occasions in the past and so there was no question Appellant understood the City expected him to work all of his scheduled hours.

Where the Commissioners split was on the issue of whether the Appellant had failed to prevent the theft of City property.  Appellant was working one of the emergency shifts at the Sewer Department.  During this shift, he was the shift supervisor.  Another employee, under the Appellant’s supervision, decided to take old batteries left in the Sewer Department garage and scrap them for cash.  The Appellant helped this employee load the batteries into his car and even backed the car out of the garage for him. He did not stop the employee from taking the batteries or notify or seek permission for the employee to take the batteries before allowing him to leave with them. The employee made approximately $220 from scrapping the batteries; none of which was turned back over to the City.

[1]

A majority of Commissioners viewed the Appellant’s behavior as misconduct worthy of discipline.  The only other example provided by the Appellant of an employee taking these batteries and scrapping them was an employee who did so with permission, and used the proceeds to at least partially fund a barbeque attended by employees.  Therefore the majority found the Appellant’s own testimony on this issue undermined his argument that he should not be punished for the incident because the only other employee he could recall scrapping these materials had done so with permission and used the proceeds for an event benefiting City employees.

Dissenting Opinion

The two dissenting Commissioners, Bowman and Stein, disagreed with the majority and concluded that the City had not adequately established that the Appellant had witnessed a theft of City property or failed to report it.  They felt there was too much ambiguity regarding the City’s practice regarding the property and what the City had allowed in the past to support its conclusions on this charge. Therefore, in reviewing the discipline imposed by the City the dissenting Commissioners only considered the time violations, not the failure to stop or report stolen property. As a result, they concluded that the penalty was too severe when compared with other similarly situated individuals, and indicated that they would have modified the termination to a long-term suspension (6 months) and/or a demotion.

The split decision in this case provides a valuable reminder of how important it is that cities and towns consistently and uniformly enforce policies and procedures.  In addition, where a discipline decision is the result of more than one violation or act, steps should be taken to clearly articulate the violations and their impact so each violation can stand on its own if necessary.

The Tangled Web Of The Lowell Police Department

In Otero v. City of Lowell, 29 MCSR 512, the Commission upheld the five (5) day suspension of a Lowell patrolman who engaged in conduct unbecoming by falsely accusing a fellow patrolman, Officer Golden, of sexually abusing his own minor child.

Officer Golden and the Appellant were both patrolmen in the Lowell Police Department.  Appellant’s wife, Ms. M, was previously married to Officer Golden and they had a child together before they divorced in August 2012.  Appellant and Ms. M began dating in or around August 2012. Also around this time, Officer Golden allegedly sent a video to Ms. M, via text message, that depicted their daughter playing without any underwear on and the message, “This is what happens to kids of divorced parents.” Neither Ms. M nor Appellant reported the video to any authority at that time. In July 2013, Ms. M and the Appellant were married.

In December 2012, Ms. M met with Lowell Police Department (“LPD”) lieutenants to discuss accusations that Officer Golden was harassing and threatening her and the Appellant.  During this meeting, Ms. M described the video that had been sent as an example of the harassment she had endured, but could not produce the video, citing technical issues. The LPD took no action regarding the video at that time.  However, in April 2013, while Ms. M and the Appellant were meeting with the District Attorney regarding Golden’s alleged harassment, Appellant brought up the video and made several embellished statements regarding the content of the video which, accepted at face value, warranted a mandatory report of child sexual abuse to the Department of Children and Families (“DCF”).  As a result, based on Appellant’s representations, LPD filed a report with DCF concerning the alleged abuse, and DCF commenced an investigation.

During the DCF investigation, Appellant effectively retracted his previous statements and stated instead that he believed Officer Golden was a good father.  DCF found the allegations of child sexual abuse to be unsubstantiated, and closed its investigation.  In January, 2014, LPD received an internal complaint relating to the potential domestic violence allegations lodged against Officer Golden by Ms. M, which included the allegation that Officer Golden had abused his daughter.  As a result, an Internal Affairs investigation was commenced.

Like DCF, the Internal Affairs investigation concluded that the child abuse allegations made by the Appellant were unsubstantiated.  It also concluded, however, that Appellant had engaged in misconduct as a result of the false abuse allegations which had resulted in several unwarranted investigations against Officer Golden.  Internal Affairs concluded that Appellant’s statements violated the Rules and Regulations of the Lowell Police Department relative to Conduct Unbecoming an Officer.  The Department concluded that this misconduct, when considered in conjunction with the Appellant’s previous disciplinary violations, warranted a five (5) day suspension.  Appellant appealed to the Commission, arguing there was no just cause to support the suspension and that he had had no notice that he was a party to the Internal Affairs investigation that concluded that he had engaged in misconduct.

The Commission dismissed these arguments and concluded there was just cause to support the suspension.  Although Appellant claimed he had never made any allegations against Officer Golden regarding child abuse, the hearing officer determined that the record demonstrated otherwise, and that Appellant was not a credible witness.  The hearing officer concluded that the Appellant had offered specific details regarding the video that he later retracted, leading several agencies into an unfounded investigation that harmed the reputation of Officer Golden and the LPD.  Consequently, Appellant’s appeal was dismissed and his suspension upheld.[2]

Protect, Serve and … Stalk?

The Commission rightly upheld the discharge of a Somerville police officer who, days after responding to a female citizen’s request for police assistance, unlawfully obtained her cell phone number from the Somerville Police Department’s (“SPD”) computer database and harassed her with disturbing and anonymous text messages.  Haynes v. City of Somerville, 29 MCSR 525.

Appellant, an SPD police officer since February 2011, was on duty in the early morning hours of Saturday, November 8, 2014, when he and a fellow officer were called to the scene of a noise complaint.  After briefly conversing with the two women who called in the complaint and those responsible for the loud noise, the officers left the scene. While working the following Tuesday, Appellant searched the department’s computer database (CAD) system for the contact information of Ms. A, one of the women who had called in the complaint on November 8.  Then, after obtaining her cell phone number, the Appellant began texting Ms. A – during his midnight to 8:00 a.m. shift – using a pre-paid “throw away” cell phone.  In these messages, Appellant repeatedly asked Ms. A about her relationship status and refused to disclose his identity, leading Ms. A to make a formal complaint to the SPD.

During the SPD’s investigation, Appellant admitted to accessing the CAD system to obtain Ms. A’s cell phone number and to sending Ms. A several text messages.  He claimed he did so because Ms. A had been very flirtatious when he responded to the call on November 8, and he thought she wanted to get to know him.  He apologized and expressed deep regret for his actions. Finding that Appellant engaged in conduct unbecoming an officer, unauthorized dissemination of official information, and untruthfulness, SPD initiated termination proceedings against him. A hearing officer for the City found just cause to terminate the Appellant’s employment.  The Mayor adopted the hearing officer’s findings and conclusion in full and discharged the Appellant.

On appeal, the Commission found that Appellant had “irrevocably broken his sworn duty of public trust” and engaged in serious, premeditated misuse of his police powers.  In addition, although the Appellant expressed his deep regret and displayed a “commendable” level of remorse, the Commission concluded that this does not “erase the demonstrated and irreparable damage that he has done to the individual he targeted, to his own credibility, and to the public trust.”  The Commissioners were also unpersuaded by Appellant’s assertion that similarly situated officers received less discipline for their misconduct.  The Commission declined to modify the City’s discipline and unanimously upheld Appellant’s discharge from the SPD.

Employees Must Be Able To Perform The Essential Functions Of Their Jobs

In Pelissier v. Town of North Attleboro, 29 MCSR 531, the North Attleboro Fire Department (“NAFD” or “the Department”) lawfully discharged a firefighter/paramedic whose EMT certification had been withdrawn by the Office of Emergency Medical Services (“OEMS”) after he mistakenly administered an overdose of medication to an elderly citizen, and then failed to successfully complete an OEMS remediation plan.

When he accepted employment with the Department in 2006, Appellant agreed to maintain his EMS Paramedic license as a condition of his employment.  The relevant collective bargaining agreement (“CBA”) between the Department and the Firefighters Union required that the sixteen (16) most junior Firefighters, inclusive of Appellant, always possess an EMT certification.

In 2014, while this provision was in effect, Appellant responded to the 911 call of an elderly woman complaining of chest pain and difficulty breathing.  After erroneously administering an overdose of medication to the woman, NAFD suspended Appellant’s Authorization to Practice pending further investigation and remediation.  OEMS investigated the incident, and required Appellant (and the other paramedics involved) to complete a remediation plan including retraining in administering medications and treating patients.

NAFD’s Affiliate Medical Director, Dr. Kelly, oversaw the remediation training and observed that the Appellant “failed to demonstrate appropriate knowledge of prehospital protocols including the medications used in these protocols and a lack of ability to consistently treat serious medical problems in a safe, timely, and clinically appropriate manner.”  As a consequence of this, he found that the Appellant failed to successfully complete the OEMS approved remediation plan and required training.  He recommended that Appellant’s authorization to practice as a paramedic with the NAFD be permanently revoked.[3] Since this authorization is an essential function of Appellant’s employment, NAFD commenced termination proceedings, and the instant appeal ensued.

In its decision upholding Appellant’s termination, the Commission pointed to previous Commission decisions and case law that make clear that the failure to obtain and/or the loss of a license without which a civil service employee is unable to perform the essential duties of his/her position is a well-established basis for just cause to impose discipline upon the employee up to and including termination from employment. Finding the facts undisputed as to Appellant’s failure to regain his paramedic authorization, the Commission found his termination was justified.

Commission Finds No Evidence Of Bias On Remand; Rejects Rote Uniform Approach To Discipline

On remand from the Superior Court, the Commission was asked to review whether the Town of West Bridgewater’s decision to terminate the Appellant for testifying untruthfully in court and misusing its CGIS system was due to bias or favoritism. The Commission determined that the Appellant’s discipline was not tainted by bias, and unanimously voted to affirm his termination.  Daniel Desmond v. Town of West Bridgewater, 29 MCSR 555.

In 2014, the Town terminated Appellant for making untruthful statements in court and using his position to influence police activity. The Appellant appealed the Town’s decision to the Civil Service Commission and his termination was upheld based on untruthfulness.  The Appellant appealed the Commission’s decision to the superior court.  The court found that the Commission failed to make several key findings related to Appellant’s claims of bias and favoritism.  The court pointed to an earlier instance where another West Bridgewater officer had lied under oath, causing the First Circuit to vacate a conviction. Unlike the Appellant, that officer had not been terminated for his conduct.  The court also found that the Commission failed to explore the Appellant’s assertion that he and the superior officer who had investigated him had been involved in a contentious encounter at a firearms training, and that this accounted for the animus that had been shown in terminating him. The court remanded the matter to the Commission with instructions to determine whether the Town’s termination of the Appellant “violated the principal of uniformity and equitable treatment.”

The Commission re-opened the hearing as to the matter of the heated encounter at the firearms training, soliciting testimony from three (3) percipient witnesses. The witnesses testified that they were present during the exchange described by the Appellant, however, not one of these officers recalled the encounter occurring as described by the Appellant.  Given the credible testimony of the other officers, the Commission concluded “that the purported angry encounter between Mr. Desmond and Lt. Flaherty, as testified to by Mr. Desmond, did not occur.” Having determined there had been no angry encounter, the Commission concluded that this incident could not have caused Lt. Flaherty to be biased against the Appellant.  Absent evidence of bias, the Commission moved on to address the court’s concerns regarding disparate treatment.

In reviewing the issue of disparate treatment or favoritism, the Commission determined there did appear to be credible evidence of favoritism towards Officer Kominsky – the officer who had lied under oath ten years earlier – while his father was the Chief of Police and later under former Chief Clark (a family friend).  Notwithstanding this, however, the Commission determined that the well-defined public policy requiring police officers to be truthful and to obey the law required that the Appellant’s termination be upheld.  In doing so, the Commission disagreed with the Superior Court that the Town’s decisions regarding Officer Kominsky set the threshold for discipline involving lying under oath.

Although the Town, then and now, failed to initiate the same type of disciplinary investigation against Officer Kominsky that it did with Mr. Desmond, this does not warrant a decision by the Commission to return Mr. Desmond to his position as a police officer.  To do so would be contrary to years of precedent-setting judicial decisions stating that a finding of truthfulness against a police officer warrants, and potentially compels, the police officer’s termination.

The Commission voted unanimously to deny the appeal.  In addition, the Commission hearing officer, Chairman Bowman, having found that personal favoritism played a role in the Town’s decision not to investigate Officer Kominsky, exercised the Commission’s authority under MGL c. 31, §72, to recommend that the Town initiate proceedings against Officer Kominsky to determine whether disciplinary action is warranted.

Concurring Opinion

The remaining four Commissioners signed onto a concurring opinion. These Commissioners agreed with the analysis and conclusions of Chairman Bowman’s remand decision, but wrote separately to urge a narrow application of the decision and to caution against requiring that a uniformity standard be applied to all discipline. These Commissioners urged that the Commission’s review remain focused solely on the matter before them and whether the action taken “is justified under basic merit principles, supported by just cause and free from undue bias or other unlawful retaliatory or discriminatory motives.”

These Commissioners also opined that it would be “unwise and impractical” for the Commission to get involved in investigating and remediating all of the past practices or abuses of appointing authorities.  They stated they would not have weighed in on whether the Town should take steps to review or correct its handling of Officer Kominsky’s case.  “We would leave that matter to the sound discretion of the Town in the first instance and would not, in any way, imply that its action or inaction should impact the independently justified decision to terminate Mr. Desmond.”

BYPASS DECISIONS

Beware Misunderstandings Caused By A Flawed or Incomplete Review Process

As the saying goes, “there are no stupid questions.” This is something appointing authorities should keep in mind given the decision in Morley v. Boston Police Department, 29 MCSR 456, a case where the Commission found that a misunderstanding regarding the term “engaged in combat” and a failure to team back with the candidate regarding unusual inconsistencies in his application resulted in the bypass of a disabled veteran that a unanimous Commission voted to overturn.

Gary Morley was a 32-year old disabled veteran who at the time of his application to the Boston Police Department (BPD) was employed as a federal police officer with the Department of Veterans Affairs.  He had been deployed on active military duty on four separate occasions (Iraq, Afghanistan and Qatar), and had received several medals, certificates and commendations while on active duty.  While overseas, Morley had been exposed to many dangerous situations, however, he did not consider these incidents to constitute engaging in combat with the enemy.  The military distinguishes between military personnel “engaged in combat with the enemy,” “in a theater of combat operations,” and “in a combat zone.”  Morley served in a designed combat zone.  Based on this understanding, he denied or answered “no” to inquiries throughout the application process about whether he had ever “engaged in combat with the enemy.”

The BPD issued Morley a conditional offer of employments.  As part of this conditional offer of employment, the Appellant underwent a medical examination and psychological screening.  Dr. Brown, who conducts first level psychological screenings for the BPD, met with the Appellant.  He also reviewed several documents related to his candidacy, including the background investigator’s report, Board of Probation Report (BOP) and his VA-related medical documents, however, he did not review these documents until after his interview with the Appellant.  Based on what he read in these materials, he concluded that Morley had been untruthful during their interview when he said he had not engaged in combat.  In addition, Dr. Brown found several other inconsistencies between his responses and the information contained in the background materials.  Based on these inconsistencies, and what Dr. Brown believed to be a lack of truthfulness, a second-level psychiatric review did not occur.  Instead, information provided by Dr. Brown was used as a basis to bypass Morley.  Neither Dr. Brown nor anyone from the BPD contacted Morley to seek clarification regarding his “combat experience” or any of the other inconsistencies.

On appeal, the Commission found that BPD’s process was flawed and incomplete, and that the conclusion that Appellant had been untruthful was not supported.  According to the Commission, BPD “overlooked the qualifications of a candidate whom [they had] found worthy of a conditional offer of employment, and whose life has been defined by service, honor and valor.”  The Commission concluded that the BPD’s decision to bypass the Appellant was largely based on its mistaken assumption (and that of Dr. Brown), that the experiences Appellant was exposed to while deployed overseas constituted combat, and that the Appellant had received a disability rating from the VA because he had been engaged in combat overseas.  Rather than seek clarification from the Appellant on this, the BPD made what the Commission determined was a “false assumption about why Mr. Morley was designated as disabled,” and decided that he had been untruthful.

Morley’s appeal was allowed, and the Commission ordered very specific and detailed relief, including:

  • in any future consideration of Appellant, the BPD cannot bypass him due to any facts or circumstances it had knowledge of prior to its March 18, 2016 notice to him that he had been bypassed;
  • any medical or psychological evaluations done as part of a future hiring process must be independent and conducted de novo by a professional not involved in the process during this hiring cycle; and
  • if and when Appellant is appointed as a Boston Police Officer, he shall be given a civil service seniority date retroactive to the date of those candidates appointed from Certification No. 2742.

New Bedford Police Department and Civil Service Commission

Several of the decisions from the Commission’s final term of 2016 involve bypass appeals of candidates seeking original appointment with the New Bedford Police Department (“Department”).  In two of the four decisions, the appeals were denied; one due to a lack of candor and a pattern of carelessness and untruthfulness on the employment application (Barbosa v. New Bedford Police Department, 29 MCSR 495), and the other on a lengthy pattern of domestic related disputes that had resulted in a restraining order and a criminal charge of assault and battery (Deterra v. New Bedford Police Department, 29 MCSR 502).  With respect to the remaining two cases, however, the Commission found that the Department had not provided sufficient justification for bypassing the Appellants, both minority candidates.

  • Honest Mistakes Not Automatically Disqualifying

In Boyd v. New Bedford Police Department, 29 MCSR 471, the Commission determined that the Appellant should not have been bypassed for untruthfulness where he had fully disclosed a youthful arrest in one part of his application but then mistakenly answered “no” to some of the more generic questions about those matters on the Personal History Questionnaire.  While agreeing with the Department that truthfulness is an important quality for a police officer, the Commission drew a distinction between candidates who make knowingly false statements or omit information from their applications, and candidates who make an “honest but mistaken” error.

In this case, the Commission determined that the Appellant had made an “honest” mistake in the way he had answered some of the questions and that “the preponderance of the evidence established that none of those responses were intentionally false or knowingly made with the intent to conceal the truth.”  The fact that he had disclosed his youthful arrest in another part of the application meant that he would have no reason to be untruthful about these matters in other parts of the application.

The Appellant’s appeal was allowed and the Commission ordered that his name be placed at the top of any current or future Certification for the position of New Bedford Police Officer, and that if he is appointed as a New Bedford Police Officer his civil service seniority date be retro to March 30, 2014.

  • A Flawed, Highly Subjective Interview Process Can Be Fatal

The second case where the Appellant’s appeal was allowed was more unusual.  In Conley v. New Bedford Police Department, 29 MCSR 477, the Commission reversed the bypass of the Appellant based on a deeply flawed process and an interview full of bias.   Although the Appellant did have some blemishes in his past including a Driver’s History with over a dozen entries (as well as suspension notices for non-payment in 1997, 1998, 2000, and 2007), a poor credit history, and a prior complaint for stalking filed by a former co-worker, the Commission found that the Department failed to establish a reasonable justification to rely on the 2006 criminal charges (which had been dismissed and the record sealed) and determined that it had wholly misconstrued his employment record and credit history/status.

In addition, the Commission found that the interview process – which was recorded and available for review by the hearing officer – was subjective and full of bias.  The claim that the Appellant had performed unsatisfactory in his interview was deemed to be not credible.

Besides finding the claim not credible, the Commission found the candidate interviews, and especially the interview of the Appellant, troubling.  During his interview, the panel made comments about the Appellant’s age and judgments regarding his car purchase and credit history.  The panel also strayed into other problematic areas including questions about physical ability, use of vulgarities, and candidates were asked to name the New Bedford Police Officer or Dispatcher they least admired or who they felt performed the job the worst.  Overall, the hearing officer determined that “NBPD’s reliance on an interview performance to distinguish which candidates make the cut and which do not is [ ] problematic because the evidence demonstrates that the Captain’s Board panel members’ level of subjectivity crossed the line and demonstrably violated basic merit principals in a number of ways.

Concurring Opinion

Although the decision to allow the appeal was unanimous, three of the Commissioners signed onto a concurring opinion in which they agreed with the hearing officer’s analysis and decision, and addressed in more detail what they felt was a “deeply flawed interview process that, at times, bared no resemblance to the type of professional, merit-based process that is required.”  One particularly troubling example highlighted by the concurring opinion is the fact that the hypothetical ethical scenarios posed by the panel seemed to result in the panel rewarding those candidates who gave answers indicating that they would give special consideration or treatment to police officers and their family and friends.  This is something that the Commission has warned against in the past and which appointing authorities and interview panels should pay careful attention to avoid.

In addition, the concurring commissioners noted that the allegations of stalking made by a former co-corker against the Appellant were serious and entitled to consideration by the Department as part of their process.  However, because the interview process was so completely flawed, these Commissioners agreed with the hearing officer’s decision that reconsideration using a more professional, merit-based approached was necessary.

Psychiatric Reports Must Identify A Psychiatric Condition That Prevents Candidate From Performing The Essential Functions Of The Job

In Rosicky v. Town of Brookline, 29 MCSR 598,[4] the Commission allowed the Appellant’s appeal of his bypass for original appointment to the Brookline Fire Department, notwithstanding two unfavorable psychological reports, a criminal record, a poor driving record, and his failure to take accountability for criminal charges.

In December 2010, Appellant was being considered for the position of firefighter with the Brookline Fire Department (“Department”).  The Appellant completed the Recruit Application, a series of interviews with Town personnel and underwent a background investigation conducted by the Brookline Police.  The background investigation revealed a three (3) page driving record and several criminal charges.  Notwithstanding these incidents and other information included in the background investigation, the Department extended the Appellant a conditional offer of employment.  The offer was contingent upon his successful completion of the medical and psychological components of the hiring process.

The Appellant passed the medical examination, but his psychological assessments produced concerning results.  Specifically, the assessments determined that Appellant was at high risk for behaviors unbecoming a firefighter, specifically – substance abuse, lack of integrity, and lack of impulse control and judgment.  The Town bypassed Appellant for failing to meet the psychological criteria for appointment as a firefighter.  The Appellant appealed.

The Commission concluded that because the Town had bypassed the Appellant based on the psychiatric reports – neither of which identified an actual condition that would preclude him from performing the tasks of a firefighter – the Town had failed to show that its bypass decision was justified.  See Boston Police Department v. Kavaleski, 463 Mass. 680 (2012) (requiring psychiatric evaluations relied on by appointing authorities to identify a psychiatric condition that would prevent the candidate from performing the essential functions of the job).   The Commission did question why the Town had offered the Appellant a conditional offer of employment given the information included in his background investigation (information which both psychiatric reports relied on), but since the bypass was based on the psychiatric reports, there was no discussion regarding the sufficiency of these background items.

Having determined that the bypass was unjustified, the Commission ordered Appellant’s name be placed at the top of next Certification, and if selected for appointment, ordered that he receive a retroactive seniority date.

Smokers Need Not Apply

A candidate for appointment as a police officer was justly bypassed where he lied about smoking, showed poor judgment in bringing a personal firearm to his workplace at a university, and failed to disclose his termination from employment at a law enforcement agency.  Starr v. Town of Medfield, 29 MCSR 609.[5]

The Appellant is a disabled veteran who served in the Army National Guard and Army Reserve from 2004 until 2015.  He had served as an auxiliary police officer for the Medfield Police Department since 2008 and had held several other jobs in law enforcement including campus security/dispatcher and security officer.  While the Appellant had several incidents in his past that raised questions regarding his suitability for the position of police officer – including bringing a firearm to his job at Framingham State University, as well as significant errors and omissions from his application, it is the Commission’s affirmation of the mandatory prohibition against smoking by those who serve in public safety positions that sticks out in this case.

Massachusetts law prohibits the appointment of a candidate for the position of police officer who has been observed to smoke during the application process.  M.G.L. c. 41, §101A.  The Appellant argued that a provision in the Smoking Prohibition Rule, PAR.23, adopted by HRD prohibited use of his smoking as reasonable justification for his bypass.  The Commission disagreed.  According to the Commission, the interpretation proposed by the Appellant would lead to an illogical result, and is inconsistent with the underlying statute which prohibits smoking by police officers and firefighters and leaves no room for discretion.  Appeal denied.

OTHER

Determining The Probationary Period for Environmental Police

In a case of first impression, the Commission took up the issue of whether environmental police are subject to a six-month or twelve-month probationary period.  In Soleimani v. Massachusetts Environmental Police, 29 MCSR 443, an environmental police officer who had been on the job for approximately 11 ½ months was terminated from his position and not provided with a pre-termination notice, a pre-termination hearing or any notice of his civil service rights.  Soleimani appealed his termination to the Commission.

The Massachusetts Environmental Police (MEP) argued that it was not obligated to provide the Appellant with any pre-termination notice or hearing because he had not yet completed his probationary period.  The MEP argued that an environmental officer’s probationary period is twelve months, pursuant to G.L. c. 31, s. 61.  The Appellant disagreed.  He argued that section 61 refers to permanent full-time police officers employed by a “city or town,” and therefore only applies to municipal police officers.  According to Soleimani, environmental police officers are governed by G.L. c. 31, s. 34, which provides a six-month probationary period for all full time civil service employees not otherwise covered by statute.

The Commission, after a careful review of the applicable statutes and the history of the MEP, agreed with the Appellant.  Applying the plain meaning ruling of statutory construction, the Commission found that although the authority and responsibilities of all police officers are similar, environmental police officers are only subject to a six-month probationary period under section 34, rather than the one-year probationary period that applies to municipal and state police officers.  The Commission found that any change to this was a decision for the Legislature to make, not the Commission. “Until such time as the Legislature establishes a specific probationary period for Environmental Police Officers, as they have done by statute with municipal police officers, state troopers and MBTA police officers, the 6-month probationary period referenced in Section 34 applies.”

As a result, the Commission determined the Appellant had not been a probationary employee at the time of his termination, and that he had been entitled to all of the due process protections of Section 41. The Commission determined that MEP’s failure to provide him with these protections had prejudiced his rights. The Commission allowed the appeal and ordered that Soleimani be restored to his position loss of compensation or other rights.

Delay Executing Delegation Agreement Does Not Invalidate Assessment Center

In Bergeron v. Town of Falmouth and Human Resources Division, 29 MCSR 546,[6] the Appellant made several arguments in support of his claim that he had been improperly bypassed for promotion to Fire Captain, all of which were dismissed by the Commission who found that the Appellant’s subsequent promotion to Captain mooted his claims. Notwithstanding this, the Commission concluded that the evidence had clearly established that the Appellant had not been unlawfully bypassed for promotion but had “died on the vine” when the 2013 short-list for Captain was revoked and replaced with a 2014 Captain’s list, “all in compliance with applicable civil service law and rules.”

One of the more unique issues raised by the Appellant is worth mentioning. Due to an administrative oversight, the Delegation Agreement between the Town and HRD, authorizing the Town’s use of an Assessment Center for the creation of the 2014 Captain’s List, had not been signed until after the Assessment Center was held.  Upon learning this, the Appellant argued that the Assessment Center and the resulting Captain’s list (which he was second on) should be invalidated.  The Commission disagreed.

The Commission concluded that the delay in signing the Delegation Agreement had not impaired the Appellant’s rights. The Assessment Center was conducted by a consultant previously approved by HRD who had conducted several such Assessment Centers in the past.  Further, there was no claim by the Appellant or anyone else that the Assessment Center had failed to comply with any of the substantive requirements of the Agreement.  “…HRD was merely performing a ministerial act within the purview of its broad discretion to conduct examinations that does not in any way affect the validity of the appointment.”

[1] The employee who scrapped the batteries was described in the decision as an individual with limited abilities owing to a prior accident, and someone who has a hard time understanding right from wrong.  This employee admitted to taking the batteries and scrapping them for cash and was given a last chance agreement (in some part due to his limited abilities), which he ended up violating.  He was terminated following his violation of the last chance agreement.

[2] In a related decision issued on the same day, the Commission determined that the Lowell Police Department was justified in bypassing the Appellant for promotion to Sergeant based in part on his disciplinary record which included this five (5) day suspension.  Otero v. City of Lowell, 29 MCSR 519.  The selected candidate was determined to have exemplary credentials compared to the Appellant, whose disciplinary history included not only the 5-day suspension for making false accusations of child abuse against a fellow officer, but other infractions including misuse of sick time and watching a football game at family member’s house while on duty.  Commissioner Cynthia Ittleman served as hearing officer in both cases.

[3] In addition, the Appellant’s EMT-basic license was temporarily suspended pending additional remediation.  At the time of the hearing at the Civil Service Commission the Appellant had not yet completed the process for recertification at the EMT-basic level or been successful in having his paramedic certification restored.

[4] This case, decided January 9, 2014, was not previously available and is being reported here for the first time.

[5] The Town of Medfield was represented by Joshua Coleman of Collins, Loughran & Peloquin, P.C.

[6] The Town of Falmouth was represented by Melissa R. Murray of Collins, Loughran & Peloquin, P.C.