A continuance without a finding (CWOF) received by a Boston Police candidate as a teenager, was not a reasonable justification for his bypass ten years later. Finklea v. Massachusetts Civil Service Commission, et al., Civil Action No. 1784CV00999 (February 9, 2018). The superior court decision affirms the Civil Service Commission’s (CSC) determination that the “single, stale” CWOF was not a “conviction” that would disqualify him from serving as a police officer, and that Finklea had not been given an opportunity to explain it.
In 2001, Finklea was eighteen years old when he received stolen property, a tire, from a friend. At the time, Finklea disputed the charges but ultimately followed his counsel’s advice to accept the CWOF based on the representation that the charge would have no further impact on him. He did not realize the charge was a felony or that he could seek to expunge or seal his record. Thirteen years later Finklea applied to be a Boston police officer and the CWOF was on his record. Although the BPD background investigator mentioned the CWOF to Finklea, he never provided him with an opportunity to discuss it. The BPD bypassed him based on his “motor vehicle and criminal histories.”
Finklea, an African-American man who at the time was thirty-two years old and married with an infant child, appealed the bypass. At the time of the bypass hearing, Finklea was working two jobs and finishing a degree at the Wentworth Institute of Technology. As part of BPD’s background investigation, he had received positive reviews from all of his supervisors, as well as three neighbors; his credit rating was excellent. The Commission determined the defendant “did not establish by a preponderance of the evidence that it had reasonable justification to bypass the [plaintiff] for the fourteen (14)-year old felony CWOF.” It also noted that “using a criminal record, especially one as old and stale as the plaintiff’s, without a reasonably thorough review of the circumstances was problematic.”
This case is illustrative of a recent trend in CSC decisions which cautions appointing authorities not to rely on outdated information and to consider all the facts surrounding potentially disqualifying events. Contact your CLP attorney with any questions.
