Massachusetts Civil Service Reporter
Management Commentary
by
Philip Collins, Esq., Melissa R. Murray, Esq. and Stephanie Merabet, Esq.
Collins, Loughran & Peloquin, P.C.
In The Courts
Superior Court States That HRD Cannot Delegate Section 27 Reviews Of Bypass Reasons/Statements To Cities and Towns
On February 28, 2014, Superior Court Judge Paul D. Wilson issued a decision in which he found that it is not “practicable” for thestate’s Human Resources Division (HRD) to delegate to cities and towns its authority to review and approve bypass reasons under G.L. c. 31, s. 27. Malloch v. Town of Hanover, SUCV2013-01169 (2014). While the decision has been appealed, if upheld, it will have potentially significant consequences on the civil service appointment process.
At issue in the case is the HRD’s authority to delegate its responsibility to “receive” written statements of a city or town’s reasons for a bypass. Chapter 31, section 27 provides that in order to bypass a candidate, an appointing authority must immediately file a written statement of reasons for the bypass. Since September 2009, the HRD has delegated its functions under s. 27 to the local appointing authorities.
In its decision, the court agreed with the plaintiff’s position that the HRD’s failure to perform a substantive review of the Town’s bypass reasons and the delegation of its obligations under G.L. c. 31, s. 27, was inconsistent with state law. According to the court, “it is illogical for the statutory scheme to allow the Town to review and approve its own statement of reasons.” The court remanded the case back to the Civil Service Commission and the HRD with instructions that the Town “is to file its statement of bypass reasons with the Human Resources Division, which is to decide whether to approve those reasons after a substantive review.”
With the appeal pending, it is unlikely that the lower court’s decision will result in any immediate changes in how cities and towns handle bypasses. We will continue to monitor the status of this case and keep you informed of any changes.
Superior Court Slams Commission for Reducing Police Officer Termination to Suspension
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. In doing so, the court chastised the Commission for demonstrating “a complete lack of recognition” that the power to impose penalties belongs to the Town.
When reviewing discipline decisions, the Commission must decide whether reasonable justification exists for the disciplinary actions taken based on the facts as found by the Commission and the circumstances found to have existed when the appointing authority made its decision. While the Commission is entitled to modify discipline when its findings of fact differ significantly from those reported by the Town, in this case, the Commission agreed with the Town and found that the Town had just cause to discipline the officer for violating applicable rules, regulations and procedures. Still, the Commission modified the Town’s decision to terminate the officer and turned it into a twenty-two month suspension, what the Commission felt was “an adequate disciplinary period to address his violations in the absence of analogous conduct and discipline.”
In a straightforward and somewhat blunt decision, the court held that the Commission’s decision to modify the penalty exceeded its authority and defied common sense. 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.”
Discipline Decisions
Personal Bias + Poor Investigation = Commission Modification of Discipline
Aguiar v. City of New Bedford provides a classic reminder of how personal bias and substandard investigations can be a tough combination to overcome before the Civil Service Commission. In Aguiar, the Commission found that long-standing, personal dislike of Lieutenant Aguiar clouded the Chief’s judgment and contributed to disparate treatment compared to other similarly-situated officers. This coupled with the misinformation and failure to properly investigate Agiuar’s behavior were sufficient for the Commission to determine that the City did not have reasonable justification to terminate Aguiar’s employment and that some lesser level of discipline would be sufficient to assure proper remediation of the few ministerial mistakes and the single incident of disrespectful conduct that was substantiated.
It can be hard enough to terminate an employee when such action is justified. Appointing Authorities that do not wish to make a difficult task more challenging should take steps to insulate discipline decisions by selecting investigators and decision makers who are well trained and free of personalbias. The same is true of those individuals selected to participate on interview panels or make hiring or promotional decisions. See Jebb v. City of Chicopee (below) for more information.
Mere Allegation of Bias Not Sufficient To Insulate Employee From Discharge
The Commission will not hesitate to uphold discipline where the timing “appears to be more a function of when the actual misconduct occurred,” as opposed to the alleged reason for bias. In Davis v. Newton Fire Department, 27 MCSR 19 (2014), the Newton Fire Department terminated a firefighter, after 18 years of service, for calling another firefighter (Gilliam) a “house n-word,” a “corn bread” and “home grown.” During a heated conversation, Gilliam, who is half Caucasian and half African American, told Davis, who is African American, that he was “always playing the ‘race card.’” At the time, Davis was engaged in litigation with the City of Newton regarding a race discrimination claim, and Davis considered this remark to be a reference to his pending claim. Commissioner Bowman refused to credit Davis’ explanation that his comments were meant to provide Gilliam with a “history lesson,” as Gilliam would have historically been considered a “house n-word,” while Davis would have been considered a “field n-word.” He also found significant Davis’ failure to apologize or otherwise take responsibility for his racially-charged comments. When Gilliam shared that he was upset about Davis’ derogatory comments, Davis did not apologize, but rather told him that they would need to “agree to disagree.”
Bowman also considered Davis’ history of prior discipline, including a thirty day suspension, upheld by Commissioner Bowman on the same day in Davis v. Newton Fire Department, 27 MCSR 16 (2014). In that case, the City suspended Davis for disobeying an order to wear his helmet during a dangerous fire. Just three days before the fire, the City received a favorable MCAD verdict in a discrimination suit filed by Davis.
In both cases, Commissioner Bowman acknowledged that suspicious timing does not necessarily prove bias. While the short time period between discipline and following the MCAD determination could have indicated that the discipline was the result of bias, the timing of the discipline was clearly a function of when the actual misconduct occurred.
Town of Maynard Decision Suggests Commission’s Modification of Discharge to Lengthy Suspension Should Warrant Appeal
A month or two before the superior court’s decision in Town of Maynard v. Civil Service Commission (see above), the Commission issued a decision in Dottin v. Cambridge Public Schools, 27 MCSR 194 (2014), that reduced the school district’s discharge of the head cook for drug and alcohol abuse to a two year suspension. While the school district chose not to appeal the decision in this case, there is reason to believe that the decision may have been reversed in light of the Maynard decision. In Maynard, the court wrote:
Demonstrating a complete lack of recognition that the power to impose penalties ab initio belongs to the Town, the Commission modified the discipline imposed on Rego from termination of his employment to a twenty-two month suspension which it described as ‘an adequate disciplinary period to address his violations in the absence of analogous conduct and discipline.’ Record at 663. 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, ipso facto, it is sufficiently serious to warrant termination.
Penalty modification is generally warranted only on a divergent finding regarding the underlying facts, but the facts found by the Commission in Dottin were the same as those found by the Appointing Authority. In the future, decisions such as Dottin should be closely scrutinized for signs the Commission has abused its authority. Where the Commission in Dottin found that a “lengthy suspension is warranted due to the seriousness of the misconduct and to discourage similar behavior by others,” the discharge should have been upheld.
Discipline Warranted Where Officer Investigates His Own Misconduct
The Commission had no problem upholding the discharge of an Oxford Police Officer for conduct unbecoming a police officer and for being untruthful in a case where the facts read like the plot summary for a prime time cop drama. In Hadis v. Town of Oxford, 27 MCSR 200 (2014), a police office, in an effort to cover-up his involvement in a traffic stop which resulted in damage to the vehicle he had pulled over, took it upon himself to respond to the citizen complaint and conduct an investigation of his own conduct, misrepresenting himself to the citizens who filed the complaint and keeping his supervisors in the dark. This coupled with the officer’s prior disciplinary record, including insubordination and making misleading statements, provided sufficient support for the decision to discharge Officer Hadis.
In addition to the Rules and Regulations violations, the Commission found it significant that Officer Hadis “never owned up to his wrongful conduct and demonstrated very clearly by the time of his April 1, 2013 meeting that he had been intentionally deceitful, had intentionally engaged in misleading and wrongful conduct, and had shown himself not
Bypass Decisions
Commission Refuses to Affirm Bypass Where Fire Department Fails to Produce Evidence
In Seong v. Malden Fire Department, 27 MCSR 65 (2014), the Malden Fire Department bypassed the appellant for his poor interview performance and questionable driving record. The Department, however, was unable to produce the appellant’s driving record or evidence regarding the questions it asked candidates, rating sheets or interview notes. The Department testified that its practice is to destroy all interview notes, candidates’ criminal histories and driving records after interviewing and selecting candidates.
The Magistrate took an adverse inference against the Department for failing to comply with its order to produce relevant documents, for failing to notify the Commission of its inability to comply with such order, and for its delay informing the appellant that it was not turning over the documents, thus precluding him from objecting prior to the hearing. While the Department offered testimony that the appellant was less dynamic than the other two candidates, the Commission found that that was not the same as demonstrating that the appellant’s interview was “below average.” Without any evidence substantiating the reasons stated in the bypass letter, the bypass could not be sustained.
If it was not clear before this decision, it should be clear now that applicant, interview, and selection materials need to be maintained at least through the pendency of any dispute(s) regarding a hiring decision.
Commission Upholds Bypass Decision Guided By Common Sense
The Commission agreed that the Lowell Police Department (LPD) had reasonable justification for bypassing a candidate for police officer who was unable to offer a credible explanation of how he came to be in possession of two loaded, unlicensed handguns. John Ly v. Lowell Police Department, 27 MCSR 170 (2014). In 2007, Ly was arrested and charged with: two counts of possessing a firearm without an identification card; two counts of storing a firearm improperly; possessing a firearm with a defaced serial number; running an illegal lottery; and a conspiracy charge related to the illegal lottery charge.
Although the gambling charges were the subject of a nolle prosequi and the firearms charges were dismissed on procedural grounds, neither the appointing authority nor the Commission were convinced (or impressed) by Ly’s story of how he saw the handguns under a truck when he was driving down Walker Street in Lowell one night (around 11:00 p.m.), and how he stopped, took the handguns home, put them in a dresser drawer and covered them with clothes. Not only was the story of how he found the handguns not credible, but the interview panel did not believe Ly’s explanation of why he, a former marine, thought taking two loaded guns home and leaving them—unsecured—in a dresser drawer in his home was a reasonable and safe course of action.
The LPD’s reasons for bypassing Ly were deemed (among other things) “guided by common sense” and the bypass was upheld.
Police Chief Appointment Vacated: Bypass Called Political Retribution
According to the Civil Service Commission, the reason that the former Chicopee Mayor Michael Bissonnette bypassed the Police Department’s Deputy Chief, William Jebb, for the appointment to Police Chief in June, 2013 was not because the second ranked candidate was superior but rather to settle an old—and imagined—political score. Jebb v. City of Chicopee, 27 MCSR 208 (2014). Bissonnette believed that, during his first run for mayor in 2005, Jebb, then president of the Superior Officers Union, leaked details of Bissonnette’s prior criminal record. Jebb not only ranked highest during the assessment center process but also topped the field before an interview panel set up by Bissonnette. Nonetheless, Bissonnette, who won the election in 2005 and had continued to win re-election since then, appointed the second ranked candidate, Captain Thomas Charette, who had also been Bissonnette’s choice for provisional chief for the year prior to the permanent appointment.
The Commission acknowledged that it ordinarily must defer to the Appointing Authority in bypass cases, but not in those circumstances where there are “[p]ersonnel decisions that are marked by political influence or objectives unrelated to merit standards or neutrally applied public policy.” The Commission noted that Bissonnette’s bypass letter was not even submitted until after he had publicly announced Charette as his choice and that the reasons cited for favoring Charette applied equally to Jebb. Further, at the hearing, Bissonnette candidly acknowledged that, while the selection process was underway, he had contacted the campaign manager for his 2005 mayoral opponent to ask whether Jebb had played a role in disseminating his criminal record information. Bissonnette said he was told that Jebb was present when the damaging information was provided to his opponent’s campaign in 2005. However, the Commission believed Jebb’s testimony that he did not provide the information but that he actually took steps to try to prevent its release. And it strongly rejected Bissonnette’s argument that it was acceptable to consider the political incident because it called into question whether Jebb had the integrity to be police chief. Commission Chairman Chris Bowman, who heard the case, also castigated Bissonnette for failing to see the wrong in what he had done.
As part of his testimony, Mr. Bissonnette dismissed any suggestion that his actions tainted the process or showed any bias against Mr. Jebb. This defies logic. For several years, Mr. Bissonnette harbored the belief that Mr. Jebb had sought to harm his political career by releasing embarrassing information related to his criminal record. More than seven years after the alleged incident occurred, it was at the forefront of Mr. Bissonnette’s mind as he was deciding whether or not to promote Mr. Jebb. He then accepted what he (allegedly) was told by the former campaign manager and weighed that information when deciding whether or not to bypass Mr. Jebb. In short, this is one of the more egregious and overt examples of political and personal bias I have seen during my tenure on the Commission.
The Commission found that the usual relief of placing the bypassed applicant at the top of the next list simply does not work when the position at issue will not be open for several years because it would effectively allow the bypass decision against Jebb to stand until Charette stepped down as Chief. Therefore, it ordered that the Charette appointment be vacated and that the newly elected Mayor (Richard Kos) make a new police chief appointment in compliance with civil service law and rules consistent with basic merit principles. Charette is being allowed to stay on as temporary Chief until a new permanent appointment is made.
Google Search Not Sufficient To Support Bypass
In Paicos v. Town of Maynard, 27 MCSR 221 (2014), the Commission allowed the Appellant’s appeal where the Police Chief was found to have based his bypass decision on the Appellant’s termination from the State Police and a few articles he found online indicating that the Appellant had been terminated during his probationary period with the State Police after he was discovered driving the wrong way down Memorial Drive. The Commission found that this information was insufficient and unreliable and that in order to comply with Beverly, an Appointing Authority “must itself make a reasonably thorough investigation of the underlying facts to determine if there is a credible basis for the allegations.”
Commission Decisions Affirm Truthfulness As Reasonable Pre-Employment Requirement
A number of decisions this reporting period confirmed an Appointing Authority’s right to expect truthfulness from applicants applying for and interviewing for a job. By failing to be truthful, the Commission agreed that the bypassed candidates failed to meet one of the Appointing Authority’s required (and reasonable) standards necessary to obtain the public service position sought. The candidates’ bypasses were upheld.
Ø In Burke v. City of Cambridge, 27 MCSR 94 (2014), the Commission upheld the bypass of a candidate for appointment as a Cambridge Firefighterwhere the candidate admitted to lying to background investigators when he claimed to have faxed his military records to the department. [1] The Appellant also provided incomplete and misleading information on his application by omitting several instances of military discipline. The Commission credited the City’s hesitation to hire an employee whose employment history indicates “volatility and lack of reliability,” specifically noting that the Appellant left two previous employers without notice and was disciplined several times during his military service for unauthorized absences and being late.
Ø In Minoie v. Town of Braintree, 27 MCSR 216 (2014), the Commission upheld the bypass of a candidate for appointment as a Braintree Police Officer where the candidate had previously been bypassed a year earlier for failing to include on his application two prior residences, the existence of two prior restraining orders and an incident of domestic violence. In addition to omitting information related to these items, there was credible evidence to suggest that Minoie was not being truthful when he claimed to be unaware of the restraining orders because they were issued while he was deployed. In fact, the orders were issued in January and February, 2009, and he was not deployed until April, 2009. As further support for its decision to bypass him a second time, the Town cited his lack of formal education beyond high school. The Commission agreed that this was a “sound and sufficient reason for bypassing the Appellant” especially where the department had a permissible policy of preferring candidates with college degrees.
Ø In Trainor v. Salem Police Department, 27 MCSR 235 (2014), the Commission upheld the Appellant’s bypass on the basis of his poor employment history and untruthfulness. Despite positive recommendations from his most recent employers, Trainor had been let go from three jobs in a period of a few years and two of the terminations were for mishandling cash. In addition, he was less than candid when discussing his terminations which occurred within a few years of him applying for the police officer position. The Commission found that there was sufficient evidence to bypass the applicant based on the content of the application/questionnaire, the background investigation material compiled on Trainor, and his responses to the interview panel regarding the discrepancies between his answers on the application/questionnaire and the material uncovered as part of the background investigation.
Ø In Butler v. City of Gloucester, 27 MCSR 240 (2014), the Commission found that the City was reasonably justified in bypassing the Appellant based on his failure to include several incidents of military discipline on his application, as well as an incorrect characterization of an earlier criminal conviction which involved a felony charge with property destruction, and a condition allowing him to avoid jail time if restitution was made and he followed through with his military service. In Gloucester, however, the candidates are interviewed prior to a review of the background investigation report, so candidates are not questioned specifically about incidents from their past and it is up to the candidate to answer truthfully and be up front about anything they believe needs to be explained from their past. Butler completed his application and interview without revealing a number of incidents of military discipline. He argued at the Commission that if he had been asked about any of the incidents uncovered during the investigation he would have provided an explanation. By not reviewing the investigation materials until after the interview and not asking him specifically about events from his past, Butler claims that he was not provided with an opportunity to respond.
The Commission disagreed stating, “The hiring process may not have provided the candidate with a ‘second bite of the apple’ opportunity to reveal details when directly questioned about them by an interview panel reconvened following their receipt of the investigation report, but that does not mean the hiring process was flawed.” It follows that the obligation to be truthful and fully answer the application and interview questions applies regardless of whether candidates are specifically asked about the skeletons in their closet or not.
Commission Continues to Warn DOC About Their Flawed Applicant Review Process
The Commission continued its unfavorable critique of the Department of Correction’s (DOC) vetting process originally discussed in Machnik v. Department Of Correction, 26 MCSR 21 (2013). In Machnik, the Commission advised DOC of its flawed process and the fact that civil service law does not allow for the delegation of authority occurring at the DOC. The Commission stated that the DOC, “on a going forward basis, should ensure that the Commissioner fulfill [the] important responsibility [of making final hiring decisions].”
Despite the Commission’s directive, the DOC has continued its unauthorized delegation of authority. In Marino v. Department of Correction, 27 MCSR 247 (2014), Moreira v. Department of Correction, 27 MCSR 251 (2014), and Rolle v. Department of Correction, 27 MCSR 254 (2014), the Commission addressed what it found to be a (still) flawed selection process and the insufficient review of candidates’ background information resulting in mistakes and improper bypasses. The Commission found that the DOC’s reasons for bypass were unsupported by evidence and that there was no evidence presented or available to show that the individual making the decisions had a full picture of each candidate before making a decision. In fact, in Rolle, the Appellant was never asked to fill out an application or given an interview to discuss an incident that showed up on her criminal record. If the DOC had taken the time to read the arrest report or review the criminal docket, it would have learned that the charges were dismissed and that Rolle had denied stealing any merchandise and that her sister had admitted that she stole the items. Because of their flawed process, none of this ever happened. The Commission determined that not only was this unfair, but it was at odds with a directive to Massachusetts employers to give applicants a chance to discuss their criminal record before using it against them.
Besides the flawed process and failure to conduct a “reasonably thorough review” of each candidate as required by City of Beverly v. Civil Service Commission, 78 Mass. App. Ct. 182 (2010), in each of these cases the Commission remained concerned by the “lack of any involvement by the Appointing Authority or the individual purportedly delegated with the responsibility for making appointments and the lack of any written internal documents (i.e. written summaries) memorializing how [these bypass decisions were made].” In all three cases the Appellant’s appeals were allowed and they were ordered placed at the top of any current or future Certification for the position of Corrections Officer I.
Practice Pointer: Move to Dismiss When So-Called “Bypass” Appeal Is In Fact A Provisional Appointment Or Promotion
Employees who are not selected for promotion through the provisional appointment process lack standing to bring a “bypass” appeal, as there is no eligible list from which to make the promotion. This is not a new issue for the Commission, as years have passed since HRD administered civil service examinations for non-public safety Civil Service positions. In Fernandes v. Department of Revenue, 27 MCSR 133 (2014),the Commission dismissed the non-selected candidate’s so-called “bypass appeal” for lack of standing—but not before summarizing the most recent framework when making provisional appointments and promotions. The Commission further recognized that investigation was not warranted where there was no evidence that the selection process was affected by bias or other unlawful motives.
