Commentary on Massachusetts Civil Service Commission Decisions (May – Aug., 2014)

[d]emonstrating a complete lack of recognition that the power to impose penalties ab initio belongs to the Town.”  In Town of Maynard, the court overturned the Commission’s modification of a police officer’s discipline from termination to a twenty-two month suspension.  Following Maynard’s lead, the superior court has issued further reminders to the Commission of its limited authority in modifying discipline in New Bedford Airport Commission v. Civil Service Commission and Boston Police Department v. Tinker.

The Commission’s role in reviewing disciplinary decisions is limited to determining whether reasonable justification exists for the discipline based on the facts as found by the Commission and the circumstances found to have existed when the Appointing Authority made its decision. The Commission is only entitled to modify discipline when its findings of fact differ significantly from those reported by the Town, or where there is evidence of bias or other political considerations.

In New Bedford Airport Commission v. Civil Service Commission, the City terminated the employee for a host of reasons, including repeated rule violations, being absent from work areas for excessive amounts of time, substandard work and insubordination, falsifying work logs, and creating a hostile work environment.  The Civil Service Commission found that the City proved all of the charges, except the claim of hostile work environment, and that while some of the charges were less serious, all carried “a thread of insubordinate spirit that cannot be tolerated in the public service.”  Despite this proclamation, the Commission, by a 3-2 vote, reduced the employee’s termination to a suspension of one year and nine months, explaining that the modification represents a significant step in progressive discipline for the misconduct proved by the City and would constitute a clear signal to the employee that his insubordinate behavior “does not leave much to be desired and needs to improve immediately.”

The dissenting Commissioners agreed that the City had just cause to discipline the employee, particularly in light of the employee’s recent string of misconduct and his “lengthy and eyebrow-raising disciplinary history that included verbal and written warnings, a 1-day suspension and a 17-day suspension.” In concluding that the discipline should stand, the dissenters expressed that they “are hard-pressed to understand how anything less than termination is warranted,” and noted that “the Commission should not provide a safe harbor for [the employee] or any other individuals who continuously engage in behavior that tarnishes the image of public service.”

The court agreed with the dissent, holding that the record and the findings of the Commission clearly support a determination that the City was justified in its decision to terminate the employee.  In allowing the City’s motion for judgment on the pleadings, the court noted that by exceeding its authority, the Commission chose “to substitute their judgment for that of the City.”

Similarly, in Boston Police Department v. Tinker, the Department suspended a sergeant for improperly disposing of evidence and for encouraging a subordinate witness to ignore his actions.  The sergeant admitted to the Department’s general facts and allegations.  The Commission concluded that the Department had just cause to impose “some discipline,” but not the five day suspension it had imposed, and replaced the suspension with a written reprimand.  The Commission allegedly based this decision on witness testimony from the sergeant’s superiors and prior disciplinary cases where similarly situated civil service employees received lesser discipline.

In vacating the Commission’s decision, the court held that the Commission’s findings of fact did not differ significantly from those found by the Department.  The court was further troubled by the Commission’s purported explanation for modifying the discipline, as it was based on the Commission’s misrepresentation of the administrative record and irrelevant evidence, including the sergeant’s motives and intent.  The court reinstated the sergeant’s five day suspension, finding that the Commission impermissibly substituted its own judgment for that of the Department, and that the suspension was a valid exercise of the Department’s discretion.

These cases serve as a strong reminder that employers should scrutinize all cases where the Commission modifies a disciplinary decision despite finding that there is just cause for discipline.  Employers still have the authority to issue serious discipline to employees who commit misconduct, and where the Commission agrees with the facts found by the Town, the Town’s disciplinary decision must stand, provided there is no evidence of bias or other political considerations.

Discipline Decisions

Civil Service Commission Hearing Not Appropriate Venue To Challenge Validity Of Last Chance Agreement

Seemingly a classic case of employee misconduct and termination, the Commission’s decision in Levesque v. Town of Middleborough, 27 MCSR 288, also affirms that a termination appeal before the Civil Service Commission is not the appropriate forum in which to argue against the validity of a last chance agreement.  The appellant who was terminated for violating a number of Department Rules and Regulations, including filing false reports, failing to be truthful, and misconduct which reflects discredit upon a member of the department, as well as witness intimidation and tampering, was already on a last chance agreement for compromising a drug investigation by informing an alleged dealer that he was under surveillance.  That agreement, signed in 2010, provided that the appellant could be terminated if he committed any act punishable by a suspension without pay.  In addition to denying the alleged misconduct and lying about his actions, the appellant argued against the validity of the last chance agreement.

The Hearing Officer correctly dismissed the appellant’s argument that the last chance agreement was invalid, and acknowledged that the hearing’s limited purpose was for “the determination of whether the Appellant had conducted himself in such a manner that discipline was necessary.”

Notwithstanding the limited the purpose of the hearing, the Hearing Officer went on to determine that the appellant’s act of creating and filing false reports for the Click-It or Ticket Program, his untruthfulness while testifying and his witness tampering and intimidation lacked integrity and good judgment such that the Town would have been justified in terminating the appellant even without the last chance agreement.  The Hearing Officer determined and the Commission agreed that “[d]espite the chance that the Town extended to the Appellant in August 6, 2010, the Appellant has amply demonstrated that he cannot remain a Middleborough police officer.”

According to the appellant’s last chance agreement, the Town only had to demonstrate that the appellant had engaged in misconduct warranting a suspension without pay of any length.  Having found that the appellant’s misconduct warranted at least a suspension, the Commission held that the Town had nothing further to prove and that it was justified in terminating the appellant pursuant to that agreement.

Hunger Is No Excuse For Leaving A Detail To Forage For Food In Someone Else’s Kitchen

In Land v. City of Waltham, 27 MCSR 394 (2014), the appellant firefighter was working a paid detail at a commercial building overseeing the lobby areas where some welding work was being done. When the workers took a break, the firefighter entered an unlocked door to a kitchen area, which was located in the secure office space of a private equity firm. Feeling right at home, the firefighter proceeded to help himself to the contents of the refrigerator and make himself a sandwich. One of the firm’s associates caught the firefighter in the kitchen and filed a report with the management company. The City issued the firefighter a three day suspension and prohibited him from working paid details for one year. The firefighter was also ordered to write a letter of apology to the private equity firm and take an online State Ethics refresher course. The Commission noted that the City had just cause for the suspension and that the paid details prohibition was not subject to appeal by the firefighter.  The Commission noted that “loss of off-duty detail opportunities are not a form of discipline covered by the ‘just cause’ provisions of Section 41,” as they are generally voluntary and sporadic.

Termination Is Appropriate Where Employee Commits Egregious Misconduct

Despite some recent Commission decisions overturning employee termination in favor of exceptionally long-term suspensions , a decision this period should help reassure employers that they need not feel compelled to issue severe discipline in lieu of termination where employees commit egregious misconduct. In Lymon v. Department of Correction, 27 MCSR 426 (2014), the Department of Corrections suspended the appellant for thirty days.  While the Commission found that the DOC was justified in suspending the appellant for thirty days, it commented that the DOC’s decision to retain the appellant as a correction officer “is both dangerous and mind-boggling.”  While the Commission is not authorized to modify a disciplinary action upward, it is not prohibited from expressing its opinion regarding the employer’s decision to only issue a thirty-day suspension, as opposed to termination.

In Lymon, the corrections officer took a nap after work without first securing his duty belt, which held his DOC-issued firearm, mace, handcuffs and handcuff keys.  When he woke up, he discovered that a female companion, with whom he was involved romantically, had taken his car and several of his personal firearms.  He borrowed a car and went searching for her, accompanied by his friend, who happens to be a known drug dealer.  When Lymon finally spotted his car, he positioned the borrowed car he was driving to partially block his car.  Lymon drew his DOC-issued gun out of its holster and pointed it towards the woman, who was in his car.  Where the car was only partially blocked, the woman drove away, still in Lymon’s vehicle. The woman or her brother later used one of Lymon’s guns to shoot approximately six times at a man in New Bedford.  Shortly after the shooting, the woman crashed Lymon’s car.  As a result of his behavior, the appellant was charged with assault by means of a dangerous weapon.  Following an investigation, the DOC suspended him for thirty days and issued him a last chance agreement.

The Commission held that by pointing his DOC-issued gun at the woman in order to regain possession of his property, Lymon violated department rules—including rules prohibiting inappropriate use of a weapon and using DOC equipment for anything other than official purposes.  Further, Lymon made “word distinctions” and was otherwise untruthful during the DOC’s investigation, and denied using his DOC-issued firearm and denied taking it completely out of the holster.  The Commission upheld the thirty day suspension, despite the fact that the DOC cited the assault charge as a reason for his discipline and Lymon was found not culpable of the assault charge, because the DOC proved the gravamen of the charge—that he pointed the gun at the woman.

Bypass Decisions

Appointing Authority Not Required To Request New Certification Despite Knowledge Of Candidate’s Changed Status

The Commission voted to deny the appellant’s bypass appeal in Gilbody v. City of Quincy, 27 MCSR 322, based on its conclusion that there is no known legal authority requiring the Appointing Authority to request a new certification where the appellant applies to HRD and has his status changed—from civilian to veteran—in the middle of the hiring process.

The facts of this case are simple but worth noting.  The City requested a certification from HRD in August, 2012 to fill vacancies.  The appellant and other candidates signed as willing to accept a position in mid-August.   The Appellant was ranked 22 of those who signed the certification.  The City immediately started conducting background checks as HRD had informed the City that the certification list would expire on November 30, 2012.  In September, 2012, the appellant applied to HRD for veteran status.  On September 28, 2012, HRD informed the appellant that his status had been updated.  Following receipt of this notification, Gilbody requested that the City request a new certification as he was listed as a civilian on the certification obtained by the City in August.  The City, which was in the middle of processing and reviewing candidates, did not request a new certification.

In its decision, the Commission rejected the appellant’s argument that the City should have requested a new certification and that he should have been considered as a veteran in order to have a better chance of being selected.  Furthermore, because the Commission determined that there was no legal authority requiring the Appointing Authority to request a new certification or consider the appellant as a veteran, they concluded the appellant’s other argument—that the City violated USERRA because it failed to consider the appellant because he was on active duty—also failed. Without a change in his status, the appellant did not fall within the 2n+1 on the August certification and he was not reached.

Another Reminder That Provisional Appointments Are Not Subject To Appeal

In Allison v. City of Cambridge, 27 MCSR 379 (2014), the appellant’s promotional bypass appeal was dismissed, where it contested her non-selection to the position of Parking Control Supervisor, an official service position.  Consistent with M.G.L. c. 31, §15, the individual who received the provisional promotion was a permanent Civil Service employee in the next lower title.  Like the majority of non-public safety official service positions, there is no eligible certification list in place from which to make a permanent promotion, as HRD no longer holds examinations for this position.  As such, there was no “bypass” to appeal.  As we discussed in this prior commentary, employers should immediately move to dismiss so-called bypass appeals of provisional appointments in order to dispose of these complaints in the most expeditious manner.

Failure To Follow Instructions And Fully Complete Application Justify Bypass, Even Where Omissions Are Not Proven To Be Deceitful

In Fopiano v. City of Cambridge, 27 MCSR 383 (2014), the Commission upheld the bypass and removal of the candidate from the eligibility list for appointment as a Cambridge Police Officer, as the appellant failed to accurately fill out his employment application and received a poor job evaluation in a position held with the same appointing authority.

On his application, the candidate repeatedly omitted information and stated other information incorrectly, regarding his prior employment and education.  The background investigation revealed that the candidate provided conflicting and contradictory information on applications to other employers by including additional employment history and overstating his length of employment at two former jobs, in one instance stating that he had worked at a job for two years, when he had really only worked there two months.  The background investigation further revealed the candidate’s poor job evaluation in a short-term position with the City’s Emergency Control Center (the same appointing authority), which further justified the appellant’s bypass, despite the appellant’s contention that he had never seen the evaluation.

The City gave the candidate ample opportunity to correct the discrepancies on his application and to provide a complete and accurate history of his employment background.  The City interviewed him on two separate occasions regarding the discrepancies, and on both occasions, the Appellant provided supplemental information regarding his employment history, as it was still incomplete.  Still, in a subsequent e-mail to the Sergeant charged with vetting candidates, the Appellant disclosed yet another former employer, and failed to provide a reasonable explanation for the false statements and material omissions in his application. The Commission held that the City had reasonable justification for bypass based on the material omissions, even where the omissions were not proven to be deceitful, because appointing authorities are entitled to “rely upon applicants to fill out the forms fully and correctly.” (citing Costa v. City of Brockton, 26 MCSR 242 (2013)).

The Commission reached a similar decision in Pineo v. City of Quincy, 27 MCSR 489, a case in which the Commission voted unanimously to adopt, in part, the Tentative Decision of Kenneth Bresler, the DALA magistrate assigned to hear the case.  In that matter, the Commission concurred with the magistrate’s conclusion that the City was justified in bypassing the appellant based on his failure to follow instructions on the written application; however, they rejected those parts of the magistrate’s decision which suggested that an interview or other form of follow-up were not required as part of an appointing authority’s reasonably thorough review.

In Pineo, the City’s decision to bypass the appellant was made before the interview phase of the selection process.  The decision not to advance Pineo to the interview round was based on the numerous omissions in his written application, as well as other concerning information that was provided as part of his application (recent driving violations, termination from former employer and rejection/denial of employment with DOC due to negative employment history).  In support of its position, the City argued that they considered the application itself to be a test and that they are looking for applicants who pay attention to detail as this likely reflects on their ability to write accurate reports and observe crime scenes—important components of the position the candidates were applying for.

While the Commission agreed that the facts of this particular case warranted bypass, it maintained that follow-up and interviews—such as the ones conducted in Fopiano—are generally required to ensure the Appointing Authority has met its obligation to perform a reasonably thorough review of eligible candidates.

Youthful Indiscretion Is Still Sufficient To Uphold Bypass Where Employer Complies With CORI Reform Law

In the 3-1 decision of Maillet v. City of Medford, 27 MCSR 397 (2014), the Commission upheld the bypass of a candidate for original appointment as a Medford Firefighter based on criminal conduct he engaged in as a teenager, 13 years earlier, where none of the selected candidates below him had a record of engaging in criminal behavior.

The thirty year old appellant was a lifelong Medford resident with both a Bachelors’ degree and a Masters’ degree in Business Management. In 2003, the appellant was caught breaking into a gas station and was charged with breaking and entering, though the case was ultimately dismissed.  As a teenager, the appellant also had other criminal charges brought against him, which were ultimately continued without a finding and dismissed, or for which he pleaded guilty and served one year probation. Since 2003, however, the appellant has maintained a clean criminal record and driving history.

In its bypass letter, the City stated that it bypassed the appellant for committing serious felonies, domestic abuse and untruthfulness on his application—all reasons which were not accurate in the appellant’s case. Once the appellant brought this mistake to the City’s attention, he received an amended bypass letter citing his past criminal history and significant driving record as the reasons justifying his bypass. Further, the City informed him that the selected candidates had excellent writing samples and great communication skills, despite a lack of evidence that their interviews or writing samples were significantly better.

In his decision, the Hearing Officer, Commissioner Paul Stein, concluded that the appellant’s bypass appeal should be allowed and that the City should have given more weight to the candidate’s many positive characteristics. The Commission Majority disagreed.  Although they adopted Hearing Officer Stein’s findings of fact, they reached a different conclusion—that the City was justified in bypassing the appellant for his criminal history.  The Majority concluded that while the hearing officer felt that the City should have given more weight to the many positive aspects of the candidate’s life, requiring the City to do so would represent an impermissible substitution of judgment.  It also noted that none of the appointed candidates had criminal records—a fact noticeably absent from the City’s letters explaining the positive attributes of the selected candidates.

This decision is consistent with Cruz v. City of Lowell, 25 MCSR 255 (2012), which we discussed in 2012, where the Commission, in a 4-1 decision, upheld the bypass of a decorated war hero based on a single, childhood incident where the charges were ultimately dropped.

Commissioner Stein, in his minority opinion, reasoned that “[s]ave for his teenage years,” the appellant’s background and interview performance contained no negative characteristics, and highlighted that the appellant was a caregiver to both his parents while satisfactorily holding down a full time job and obtaining a high level of education. In addition, he contended that the City’s “confusing and erroneous initial explanation for bypassing” the appellant “cannot be discounted as a mere scrivener’s error” and expressed his concern that the City may have simply crafted the best post-hoc rationale available and that the candidate’s positive attributes were never properly considered.

In Maillett, it is important to note that the Majority justified the City’s reliance on the appellant’s criminal history in large part because the appellant was interviewed and given an opportunity to discuss his criminal background prior to the bypass decision. Without this opportunity, his bypass likely would not have been upheld.   For instance, in Teixeira v. Department of Correction, 27 MCSR 471 (2014), the appellant’s bypass was not upheld where the appointing authority neglected to give the applicant a chance to complete the employment application or explain his criminal record in an interview, thus violating the intent of the CORI reform law.

The appellant in Teixeira was a thirty-eight year old father who spends his time coaching his son’s baseball and basketball teams, serves as a chaperone on his son’s class trips, and works in a supervisory capacity at his full time job. Two decades prior, while in high school, the appellant was arrested and charged with prostitution and soliciting prostitution.  In 1993, both charges were ultimately continued without a finding and dismissed.

During the DOC’s hiring process, the appellant signed the certification, indicating his willingness to accept employment, and signed a waiver authorizing DOC to conduct his background investigation. Following his background check, the appellant was never asked to fill out an employment application and was never given an interview or otherwise provided an opportunity to discuss his criminal record. Instead, the DOC sent the appellant a letter indicating that he was bypassed based on his criminal history and driving record; the DOC never sent the appellant a copy of his criminal history record.

In deciding not to uphold the bypass, the Commission discussed that in 2009, while speaking in favor of CORI reform legislation, Governor Patrick challenged Massachusetts employers, public and private, to give job applicants a chance to discuss their criminal record before excluding them from consideration. The Commission chastised the DOC and noted that this is not the first time the agency has ignored the Governor’s directive by neglecting to give appellants with criminal records an opportunity to discuss their records—or even complete a job application. By failing to look behind the appellant’s CORI report, the DOC “knew almost nothing” about the appellant, including information about his accomplishments or that the criminal conduct occurred when the appellant was in high school.

What Maillett and Teixeira make clear is that the Commission will give employers a fair amount of leeway when reviewing bypass cases of candidates with criminal records as long as the candidate has been given an opportunity to complete the written application process and discuss the results of their background investigation prior to the Appointing Authority making an adverse employment decision based on their criminal history.