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MASSACHUSETTS CIVIL SERVICE REPORTER

Massachusetts Civil Service Commission

Administrative Law Decisions

VOLUME 29

2016

Civil Service Commission

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Boston, MA 02108

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MASSACHUSETTS CIVIL SERVICE REPORTER (ISSN-1522-6689)

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Massachusetts Civil Service Commission–Administrative Law Decisions

In This Issue

Volume 29 March 2016

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . continued on next page

CITE BY VOLUME AND PAGE OF THE Massachusetts Civil Service Reporter THUS:

McDowell v. City of Springfield, 29 MCSR 11 (2016)

POLICE DEPARTMENTS

Bypass Appeals

Mootness-Rescission of Employment Offer-Reversal of Medical Disqualification—The Commission

dismissed a bypass appeal on the grounds of mootness since the City of Somerville had reversed its original

disqualification based on a medical examination. Duval v. City of Somerville (Order of Dismissal) . . . . . . . . . . 176

Original Appointment as a Boston Police Officer-Lack of Bypass-No Successful Appointment With Lower

Scores—The bypass appeal of a candidate for original appointment to the Boston Police Department was

dismissed for lack of a bypass since the Appellant received a score of 98, a rank of 50, and the parties agreed

that no candidate ranked below 50th was appointed. Tobin v. Boston Police Department (Order of Dismissal) 188

Original Appointment as a Boston Police Officer-Test Scores-No Candidate Ranked Below Appellant Was

Appointed—The Commission dismissed the appeal of a candidate for original appointment to the Boston Police

Department who scored 98 on the exam and was ranked 50th but was never bypassed because none of the

successful candidates were ranked below him. O’Sullivan v. Boston Police Department (Decision on

Respondent’s Motion to Dismiss) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217

Original Appointment as a Police Officer-Failure to Meet One Year Rule by 18 Days—The Commission

dismissed the appeal of a bypassed candidate for original appointment to the Abington Police Department who

had lived in Abington since 2010 but nonetheless failed to satisfy the one year residency requirement for a local

preference because he moved out of town just 18 days before the date of the civil service examination. The

Commission could not rule otherwise but lamented this result given the Appellant’s longstanding residence in the

town and the fact that he was forced to move out of town because he lost his lease and was unable to locate any

affordable housing. Campbell v. Abington Police Department (Order of Dismissal) . . . . . . . . . . . . . . . . . . . . . . 174

Original Appointment to the Boston Police Department-Hair Drug Test-Falsifying Work Hours at a

Previous Employer-Credibility of Applicant—The Commission dismissed the appeal of a bypassed candidate

for original appointment to the Boston Police Department whose hair drug test showed very high levels of cocaine

and who admitted to having falsified timesheets at a previous employment in order to secure payment for hours

that she did not work. Berrios v. Boston Police Department (Decision) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

POLICE DEPARTMENTS

Commission Investigation

Boston Police Department Promotions-Nepotism-Political Influence-Diversity Goals—The Commission

declined to investigate recent promotions to sergeant by the Boston Police Department when petitioned by an

unsuccessful female candidate, rejecting her claims of political influence and nepotism. The 13 successful

candidates were all at the top of the eligible list, or advanced diversity goals, and the Appellant’s evidence of a

tainted process was speculative at best. The decision favorably makes note of the fact that the Appellant was

given a meeting with Police Commissioner William Evans to discuss her grievances. Dorsey v. Boston Police

Department (Response to Request to Open Investigation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

Disciplinary Actions

Discharge of Boston Police Officer-Conduct Unbecoming-Truthfulness-False Reports-Abuse of Process-

Conformance to Laws-Failing to Appear for Drug Test-Failure to Report Change of Residential Address—

The Commission voted 5-0 to affirm the discharge of a Boston police officer whose offenses included a fabricated

charge of assault against a superior officer, lying to a magistrate and others, failing to take the annual drug test,

and failing to keep her residential address up-to-date. This officer, assigned as a liaison to the Boston Public

Schools and “at-risk” youth, further distinguished herself by failing to show up for the third day of hearings at

the Commission when she was scheduled to testify in her own appeal. James v. Boston Police Department

(Decision). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

Two Day Suspension of Norwood Police Officer-Unlawful Arrest-Dereliction of Duty—The two-day

suspension of a Norwood police officer who arrested the passenger of a passing motor vehicle because she

called him a “prick” for blocking a downtown thoroughfare with a traffic stop was wholeheartedly affirmed by the

Commission. The decision takes note that the officer had previously been disciplined for excessive force and that

he seemed to be woefully unfamiliar with First Amendment protections of citizen free speech. Citizens may freely

insult police officers verbally so long as the comments do not constitute “fighting words” or reach the level of

disorderly conduct or disturbing of the peace. Zorzi v. Town of Norwood (Decision) . . . . . . . . . . . . . . . . . . . . . 189

Examination Appeal

Training and Experience Credits-Police Sergeant Exam—The appeal of a Watertown police officer who failed

to complete his on-line application for E & E credits or file an appeal with HRD was dismissed with a not

unsympathetic decision by Commission Chairman Christopher C. Bowman. The decision takes note of the

confusing HRD explanation of the appeals process and suggests that HRD should have a process for at least

considering limited good-cause exceptions for late-filed appeals. Chairman Bowman also found it perplexing that

HRD takes the draconian step of issuing a failing score on the entire examination when the individual does not

submit the E & E component online or on time. O’Neill v. Human Resources Division (Order of Dismissal) . . . 186

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . continued on next page

IND

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MCSR Indices–2016

Cumulative Cases Reported–January-March 2016

Plaintiff v. Defendant

Amenta v. Department of Correction . . . . . . . . . . . . . . . 168

Armano v. City of Lawrence . . . . . . . . . . . . . . . . . . . . . 36

Baker v. Department of Developmental Services . . . . . . . . 129

Baston v. Human Resources Division . . . . . . . . . . . . . . . . 62

Berrios v. Boston Police Department . . . . . . . . . . . . . . 132

Bickford v. Department of Mental Health . . . . . . . . . . . . 140

Bowles v. Human Resources Division . . . . . . . . . . . . . . . . 37

Campbell v. Abington Police Department . . . . . . . . . . . . 174

Clarke v. Human Resources Division . . . . . . . . . . . . . . . . . 1

Dorsey v. Boston Police Department. . . . . . . . . . . . . . . 141

Duval v. City of Somerville . . . . . . . . . . . . . . . . . . . . 176

Farrell v. Town of Danvers . . . . . . . . . . . . . . . . . . . . 144

Gleason v. Human Resources Division . . . . . . . . . . . . . . . . 9

Godere v. City of Chicopee. . . . . . . . . . . . . . . . . . . . . . 65

Goggin v. Boston Police Department. . . . . . . . . . . . . . . . . 78

Hernandez v. City of Lawrence. . . . . . . . . . . . . . . . . . . . 81

Horigan v. Boston Fire Department . . . . . . . . . . . . . . . . . 83

James v. Boston Police Department . . . . . . . . . . . . . . . 194

Kelley v. City of Boston . . . . . . . . . . . . . . . . . . . . . . 176

McDowell v. City of Springfield . . . . . . . . . . . . . . . . . . . . 11

McEachen v. Boston Housing Authority . . . . . . . . . . . . . . . 99

Melton v. Department of Public Health . . . . . . . . . . . . . . . . 39

Merced v. Boston Police Department . . . . . . . . . . . . . . . . 84

Moran v. City of Brockton . . . . . . . . . . . . . . . . . . . . . . 102

Muise v. City of Chicopee . . . . . . . . . . . . . . . . . . . . . . 105

Mulvey v. City of Brockton . . . . . . . . . . . . . . . . . . . . . 112

O’Sullivan v. Boston Police Department . . . . . . . . . . . . . 217

O’Connor-Powers v. Department of Revenue . . . . . . . . . . . 115

O’Neill v. Human Resources Division . . . . . . . . . . . . . . 186

O’Connell v. Human Resources Division. . . . . . . . . . . . . . . 90

Poirier v. City of Leominster. . . . . . . . . . . . . . . . . . . . . 117

Prokop v. Boston Housing Authority . . . . . . . . . . . . . . . . . 40

Pugsley v. Boston Police Department . . . . . . . . . . . . . . . 119

Richardson v. Chelmsford Police Department . . . . . . . . . . . . 95

Saliba v. City of Worcester . . . . . . . . . . . . . . . . . . . . . . 41

Sousa v. Human Resources Division . . . . . . . . . . . . . . . . 15

Spillane v. Department of Developmental Services . . . . . . . 159

Stacy v. Department of Developmental Services . . . . . . . . 164

Stiles v. Department of Correction . . . . . . . . . . . . . . . . . 126

Sullivan v. Boston Police Department . . . . . . . . . . . . . . . . 53

Suneson v. City of Fall River Fire Department . . . . . . . . . . . . 59

Suneson et al. v. Fall River Fire Department. . . . . . . . . . . . . 56

Sutton v. Department of Correction . . . . . . . . . . . . . . . 218

Tobin v. Boston Police Department . . . . . . . . . . . . . . . 188

Wilbanks v. Human Resources Division . . . . . . . . . . . . . . . 97

Wilbanks v. Human Resources Division . . . . . . . . . . . . . . . 22

Wosny v. Boston Police Department . . . . . . . . . . . . . . . . . 33

Zorzi v. Town of Norwood. . . . . . . . . . . . . . . . . . . . . 189

MCSR Indices–2016 iii

Cumulative Subject Matter Index–January-March 2016

Appointments and Promotions

Bypass Appeals

– Certification List (see also Promotional List)

– Criminal Record and Activity

– Domestic Violence

– Drug and Alcohol Abuse

– Employment History

– Gender Goals

– Labor Service Positions

– Lying

– Medical Incapacity

– Nepotism

– Polygraph Examination

– Redeeming Factors

– Residency Preference

– Stale Information

– Temporary Employees

– Test Scores

Examination Appeals

– Essay Questions

– Fair Test Appeal

– Oral Exams

– Timeliness of Appeal

– Training and Experience Credits

Human Resources Division (FormerlyDPA)

– Certification Lists

– Delegation of Bypass Decisions

Commission Practice and Procedure

Appeal

– Timeliness

Damages

– Mitigation

Investigation by Commission

Mootness

Motion Practice

– Motion for Reconsideration

Order of Dismissal

Remanded Decision from Judiciary

Section 41 Hearing

Section 42 Appeal

Standing

– Bypass Appeal

Witnesses

Disciplinary Action

Bias

Demotion

– Lying to Investigators

Discharge

– Criminal Conduct


– Drug/Alcohol Abuse

– Failure to File Reports

– Lying and Perjury

– Physical Incapacity

Modification of Penalty by Commission

– Harshness

– Lack of Evidence

Progressive Discipline

Suspension

– Dereliction of Duty

– Dignity in Workplace

– Excessive Force

– Facebook

– Failure to File Reports

– Failure to Follow Procedures

– Fighting

– Incompetence

– Lying

– Neglect of Duty

Jurisdiction

Hearing by Appointing Authority

Provisional Employment

Other Personnel Actions

Abolitions and Layoff Actions

– Bias

– Bumping Rights

– Elimination of Position

– Seniority

Demotion

Reinstatement Action

Seniority Date

Provisional Employment

Promotions

Veterans

iv MCSR Indices–Volume 29

Appointments and Promotions

Bypass Appeals

– Certification List (see also Promotional List)

Given that the Boston Fire Department withdrew its PAR.09 removal re-quest for the Appellant’s candidature for original appointment as afirefighter, the Commission ordered it to reinsert the Appellant’s name onthe relevant certification at its former ranking for further consideration.Horigan v. Boston Fire Department (Ruling on Par.09 Removal), 29MCSR 83 (2016).

The Commission dismissed the appeal of a bypass from a candidate fororiginal appointment to the Lawrence Police Department who had lasttaken the test in 1999, lost multiple subsequent bypass appeals, and hadonly remained on the eligibility list because of a clerical error. Hernandezv. City of Lawrence (Ruling on Motion to Dismiss), 29 MCSR 81 (2016).

– Criminal Record and Activity

The Worcester Police Department was justified in bypassing a candidatefor original appointment based on a less than forthcoming interview and atroubled personal history that included excessive drinking, domestic vio-lence, and criminal conduct. Most of the criminal activity referred to in theappeal had not resulted in matters for which the Appellant was prosecutedor even arrested. The incidents in question involved insurance fraud andassault. Saliba v. City of Worcester (Decision), 29 MCSR 41 (2016).


The Worcester Police Department was justified in bypassing a candidatefor original appointment based on a less than forthcoming interview and atroubled personal history that included excessive drinking, domestic vio-lence, and criminal conduct. The incidents of domestic violence had oc-curred ten years earlier when he was in the military and arose in thecontext of an unhappy first marriage. Saliba v. City of Worcester (Deci-sion), 29 MCSR 41 (2016).

– Drug and Alcohol Abuse

The Commission dismissed the appeal of a bypassed candidate for origi-nal appointment to the Boston Police Department whose hair drug testshowed very high levels of cocaine and who admitted to having falsifiedtimesheets at a previous employment in order to secure payment for hoursthat she did not work. Berrios v. Boston Police Department (Decision), 29MCSR 132 (2016).

– Employment History

The Commission dismissed the appeal of a bypassed candidate for origi-nal appointment to the Boston Police Department whose hair drug testshowed very high levels of cocaine and who admitted to having falsifiedtimesheets at a previous employment in order to secure payment for hoursthat she did not work. Berrios v. Boston Police Department (Decision), 29MCSR 132 (2016).

– Gender Goals

A male candidate for original appointment to the Boston Police Depart-ment lacked standing to challenge a selective certification for female can-didates where he was ranked 214 on the eligibility list and would neverhave been reached. The Supreme Judicial Court had recently ruled in re-lated litigation on appeal from the Superior Court that he lacked standingfor this same reason. Pugsley v. Boston Police Department (Decision), 29MCSR 119 (2016).

– Labor Service Positions

A candidate for appointment to the Brockton labor-service position ofHeavy Motor Equipment Operator could not challenge his nonselectionfrom a final field of three candidates given that the successful candidate’sappointment was treated as a voluntary transfer or a “change of position”from within the same department. Mulvey v. City of Brockton (Decision onRespondent’s Motion for Summary Decision), 29 MCSR 112 (2016).

The Commission declined to hear an appeal from a candidate for appoint-ment to the Brockton labor-service position of Heavy Motor EquipmentOperator given that the successful candidate benefited from a voluntarytransfer and the DPW Commissioner was vested with full authority to ap-prove the transfer without even posting the position or soliciting applica-tions from other candidates. Moran v. City of Brockton (Decision onRespondent’s Motion for Summary Decision), 29 MCSR 102 (2016).

– Lying

The Commission again affirmed the bypass of a candidate for original ap-pointment to the Boston Police Department whose previous 2012 bypassfor untruthfulness about an OUI incident had been affirmed by the Com-mission. The BPD also bypassed the Appellant in 2015 for the same rea-sons and the Commission affirmed this decision, finding that thecandidate’s relatively recent pattern of untruthfulness made any claim to“redemption” a fairly futile exercise at this stage. Wosny v. Boston PoliceDepartment (Decision on Motions for Summary Decision), 29 MCSR 33(2016).

– Medical Incapacity

The Commission once again affirmed the bypass of a candidate seekingpromotion to Boston police sergeant where her medical issues restrictedher to light duty and prevented her from carrying a firearm. Sullivan v.Boston Police Department (Decision on Motion to Dismiss), 29 MCSR 53(2016).

– Nepotism

Although criticizing the lack of controls in the Town of Chelmsford todocument and discourage conflicts of interest and nepotism, the Commis-sion nevertheless declined the opportunity to investigate the recent cre-ation of two lieutenancies by the Police Department which resulted in thepromotion of the Deputy Chief’s brother and a friend of the Chief. The re-organization apparently doomed the Appellant police officer’s chances ofbeing promoted to sergeant since the Chief decided not to fill a recentlyvacated sergeant’s position. Amajority of the Commission was apparentlyconvinced by the testimony of the Chief that this reorganization was madefor legitimate administrative reasons. Richardson v. Chelmsford PoliceDepartment (Response to Request for Investigation), 29 MCSR 95(2016).

– Polygraph Examination

A candidate bypassed for original appointment to the Worcester PoliceDepartment was unsuccessful in claiming that the City unlawfully reliedon the results of a polygraph examination that he took in a failed bid to beappointed to the Connecticut State Police. Worcester did not require theAppellant to undergo such an examination but was not precluded fromconsidering such information from another law enforcement agency.Saliba v. City of Worcester (Decision), 29 MCSR 41 (2016).

– Redeeming Factors

The Commission again affirmed the bypass of a candidate for original ap-pointment to the Boston Police Department whose previous 2012 bypassfor untruthfulness about an OUI incident had been affirmed by the Com-mission. The BPD also bypassed the Appellant in 2015 for the same rea-sons and the Commission affirmed this decision, finding that thecandidate’s relatively recent pattern of untruthfulness made any claim to“redemption” a fairly futile exercise at this stage. Wosny v. Boston PoliceDepartment (Decision on Motions for Summary Decision), 29 MCSR 33(2016).

– Residency Preference

The Commission dismissed the appeal of a bypassed candidate for origi-nal appointment to the Abington Police Department who had lived inAbington since 2010 but nonetheless failed to satisfy the one year resi-dency requirement for a local preference because he moved out of townjust 18 days before the date of the civil service examination. The Commis-

Cumulative Subject Matter Digest–January-March 2016

MCSR Indices–2016 v

CUMULATIVE SUBJECT MATTER DIGEST–JANUARY-MARCH 2016

sion could not rule otherwise but lamented this result given the Appel-lant’s longstanding residence in the town and the fact that he was forced tomove out of town because he lost his lease and was unable to locate anyaffordable housing. Campbell v. Abington Police Department (Order ofDismissal), 29 MCSR 174 (2016).

– Stale Information

The Worcester Police Department was justified in bypassing a candidatefor original appointment based on a less than forthcoming interview and atroubled personal history that included excessive drinking, domestic vio-lence, and criminal conduct. Although many of these matters dated frommore than ten years ago, Commissioner Cynthia A. Ittleman found theAppointing Authority justified in concluding that much of this negativebehavior was not sufficiently in the past to warrant appointment. Saliba v.City of Worcester (Decision), 29 MCSR 41 (2016).

– Temporary Employees

On remand from the Superior Court, the Commission found that appealsfrom Boston fire lieutenants challenging temporary captain promotionswere untimely because they had been filed more than 60 days after thefour appointments that had been made. In addition, two of the Appellantshave since retired and any claims they may have had to relief weremooted. Kelley v. City of Boston (Decision After Remand), 29 MCSR 176(2016).

– Test Scores

The Commission dismissed the appeal of a candidate for original appoint-ment to the Boston Police Department who scored 98 on the exam andwas ranked 50th but was never bypassed because none of the successfulcandidates were ranked below him. O’Sullivan v. Boston Police Depart-ment (Decision on Respondent’s Motion to Dismiss), 29 MCSR 217(2016).

The bypass appeal of a candidate for original appointment to the BostonPolice Department was dismissed for lack of a bypass since the Appellantreceived a score of 98, a rank of 50, and the parties agreed that no candi-date ranked below 50th was appointed. Tobin v. Boston Police Depart-ment (Order of Dismissal), 29 MCSR 188 (2016).

Examination Appeals

– Essay Questions

An Appellant Boston Police lieutenant appealing his scores on a captain’spromotional exam was entitled to a review of his “In Basket” test by HRDsince it required the writing of essays and did not involve a mere computa-tional exercise. His results on the “Oral Board Test” were not reviewablesince no statute authorizes the Commission to review scoring of an OralBoard examination. Wilbanks v. Human Resources Division (Decision onRespondents’ Motion to Dismiss), 29 MCSR 22 (2016).

The Commission allowed a late-filed examination appeal where the Ap-pellant mistakenly filed his appeal with the Civil Service Unit at HRD.Commissioner Paul M. Stein found that the Boston Police Department’sinstructions on appeals from examinations were less than crystal clear andthat the appeal would, in any event, have to begin at HRD prior to a furtherreview with the Commission. Sousa v. Human Resources Division (Deci-sion on Respondents’ Motion to Dismiss), 29 MCSR 15 (2016).

With respect to a promotional appeal from a Boston police sergeant thatcontested his “In Basket” test results, the Commission held that this testqualifies as an “essay” test whose results may be appealed to the Commis-sion after a review by HRD and that the test results review is not merely“computational.” The Commission remanded the appeal to HRD to con-duct a substantive review and declined to substitute its judgment for thatof the Division. Clarke v. Human Resources Division (Decision on Re-spondent’s Motion to Dismiss), 29 MCSR 1 (2016).

– Fair Test Appeal

Where three Boston police officers were appealing the failure of HRD toconduct a review of their “In Basket” scores, the Commission deniedHRD’s motion for reconsideration of the Commission’s earlier order thatit do so. HRD had argued that the appeals were untimely under thetimeline for filing fair test appeals but the Commission pointed out thatthese appeals contested the specific scoring of the Appellants’ tests andwere not “fair test” appeals. The Commission did signal its accord with arecent Appeals Court decision that the statutory filing requirement of G.L.c. 31, §22 must yield to the appropriate constitutional mandates of dueprocess. Wilbanks v. Human Resources Division (Decision on HRD’s Mo-tion for Reconsideration), 29 MCSR 97 (2016).

The Commission rejected the contention of the Boston Police Departmentthat a fair test appeal had been untimely filed since BPD provided woe-fully inaccurate information to the candidates about their right to chal-lenge the examination process. HRD was ordered to conduct a fair testreview to address the relevant issues raised in the Appellant’s appeal.Merced v. Boston Police Department (Decision on BPD’s Motion to Dis-miss), 29 MCSR 84 (2016).

– Oral Exams

An Appellant Boston Police lieutenant appealing his scores on a captain’spromotional exam was entitled to a review of his “In Basket” test by HRDsince it required the writing of essays and did not involve a mere computa-tional exercise. His results on the “Oral Board Test” were not reviewablesince no statute authorizes the Commission to review scoring of an OralBoard examination. Wilbanks v. Human Resources Division (Decision onRespondents’ Motion to Dismiss), 29 MCSR 22 (2016).

– Timeliness of Appeal

The Commission allowed a late-filed examination appeal where the Ap-pellant mistakenly filed his appeal with the Civil Service Unit at HRD.Commissioner Paul M. Stein found that the Boston Police Department’sinstructions on appeals from examinations were less than crystal clear andthat the appeal would, in any event, have to begin at HRD prior to a furtherreview with the Commission. Sousa v. Human Resources Division (Deci-sion on Respondents’ Motion to Dismiss), 29 MCSR 15 (2016).

– Training and Experience Credits

The appeal of a Watertown police officer who failed to complete hison-line application for E & E credits or file an appeal with HRD was dis-missed with a not unsympathetic decision by Commission ChairmanChristopher C. Bowman. The decision takes note of the confusing HRDexplanation of the appeals process and suggests that HRD should have aprocess for at least considering limited good-cause exceptions forlate-filed appeals. Chairman Bowman also found it perplexing that HRDtakes the draconian step of issuing a failing score on the entire examina-tion when the individual does not submit the E & E component online oron time. O’Neill v. Human Resources Division (Order of Dismissal), 29MCSR 186 (2016).

The appeal from a candidate for promotion in the Massachusetts Environ-mental Police that asserted the wrongful denial of E & E credits on theexam was dismissed in a decision by Commissioner Paul M. Stein whodetailed at great length the Appellant’s failure to follow the instructionsfor entering this information on the NEOGOV website. O’Connell v. Hu-man Resources Division (Decision), 29 MCSR 90 (2016).

The Commission reversed HRD’s refusal to allow education credits to aBoston candidate for promotion to police sergeant, ruling that he shouldbe allowed credit for a two-year associates degree since he had completedmore than the necessary requirements for such a degree in a four-year pro-gram. HRD had argued it lacked the expertise and resources to make suchequivalency determinations. Goggin v. Boston Police Department (Deci-sion on HRD’s Motion for Summary Decision), 29 MCSR 78 (2016).

MCSR Indices–2016 xi

Cumulative Cases Cited–January-March 2016

Adams v. City of Newton, 24 MCSR 495 (2011)

Stacy v. Dept. of Developmental Services, 29 MCSR 167 (2016)

Ahern-Stalcup v. Civil Service Commission, 79 Mass. App. Ct. 210 (2011)

Clarke v. Human Resources Div., 29 MCSR 8 (2016)

Merced v. Boston Police Dept., 29 MCSR 88 (2016)

Sousa v. Human Resources Div., 29 MCSR 21 (2016)

Wilbanks v. Human Resources Div., 29 MCSR 31 (2016)

Allen v. Taunton Public Schools, 26 MCSR 376 (2013)


Almeida v. City of New Bedford, 22 MCSR 269 (2009)

Spillane v. Dept. of Developmental Services, 29 MCSR 162 (2016)

Almeida v. City of New Bedford, 23 MCSR 608 (2010)

Baker v. Dept. of Developmental Services, 29 MCSR 132 (2016)



Amaral v. City of Fall River, 22 MCSR 653 (2009)



Anderson v. Department of Correction, 21 MCSR 647 (2008)

Saliba v. City of Worcester, 29 MCSR 49 (2016)

Sullivan v. Boston Police Dept., 29 MCSR 54 (2016)

Annis v. Human Resources Division, 13 MCSR 156 (2000)


Aquino v. Human Resources Division, 28 MCSR 335 (2015)

Merced v. Boston Police Dept., 29 MCSR 88 (2016)


Armano v. City of Lawrence, G1-06-305 (2007)

Armano v. City of Lawrence, 29 MCSR 36 (2016)

Arvanitis v. Department of Correction, 19 MCSR 281 (2006)


Ash v. Police Commissioner of Boston, 11 Mass. App. Ct. 650 (1981)


Asiaf v. Department of Conservation and Recreation, 21 MCSR 23 (2008)

O’Connor-Powers v. Dept. of Revenue, 29 MCSR 115 (2016)

Assad v. Berlin-Boylston Regional School Committee, 406 Mass. 649 (1990)


Attorney General v. McHatton, 428 Mass. 790 (1999)

Berrios v. Boston Police Dept., 29 MCSR 137 (2016)

Wosny v. Boston Police Dept., 29 MCSR 34 (2016)

Barry v. Civil Service Commission, 323 Mass. 431 (1948)




Bartolomei v. City of Holyoke, 21 MCSR 94 (2008)

O’Sullivan v. Boston Police Dept., 29 MCSR 217 (2016)

Tobin v. Boston Police Dept., 29 MCSR 188 (2016)

Bedard v. Marlborough Public Schools, 26 MCSR 511 (2013)


Bistany v. City of Lawrence, 26 MCSR 117 (2013)

McEachen v. Boston Housing Auth., 29 MCSR 101 (2016)

Board of Selectmen of North Attleborough v. Civil Service Commission, 16Mass. App. Ct. 388 (1983)


Bombara v. Department of Mental Health, 21 MCSR 255 (2008)



Boorack v. Pembroke Police Department, 10 MCSR 57 (1997)

Pugsley v. Boston Police Dept., 29 MCSR 124 (2016)

Boston Police Department Drug Testing Appeals v. Boston Police Depart-ment, 26 MCSR 73 (2013)


Boston Police Department v. Choukas, Suffolk Superior Court Civil ActionNo. 96-6895A


Boston Police Department v. Collins, 48 Mass. App. Ct. 408 (2000)

Amenta v. Department of Correction, 29 MCSR 172 (2016)


Farrell v. Town of Danvers, 29 MCSR 158 (2016)

Godere v. City of Chicopee, 29 MCSR 77 (2016)

James v. Boston Police Dept., 29 MCSR 211 (2016)

Muise v. City of Chicopee, 29 MCSR 111 (2016)


Zorzi v. Town of Norwood, 29 MCSR 192 (2016)

Boston Police Department v. Kavaleski, 463 Mass. 680 (2012)

Kelley v. Boston Fire Dept., 29 MCSR 181 (2016)


Boston Police Patrolman’s Association, et al. v. Civil Service Commission,No. 2006-4617, Suffolk Superior Court (2007)

Dorsey v. Boston Police Department, 29 MCSR 143 (2016)

O’Connor-Powers v. Dept. of Revenue, 29 MCSR 116 (2016)

Richardson v. Chelmsford Police Dept., 29 MCSR 96 (2016)

Boston Police Superior Officers Federation v. Civil Service Commission, 35Mass. App. Ct. 688 (1993)




Brackett v. Civil Service Commission, 447 Mass. 233 (2006)






Brackett v. Massachusetts Bay Transportation Authority, 15 MCSR 9 (2002)


Brady v. Maryland, 373 U.S. 83 (1963)


Breen v. Gardner School Department, 25 MCSR 154 (2012)


Burke v. Human Resources Division, 21 MCSR 177 (2008)

Suneson v. City of Fall River, 29 MCSR 62 (2016)

Busa v. Fall River Police Department, 27 MCSR 552 (2014)


Cambridge Housing Authority v. Civil Service Commission, 7 Mass. App. Ct.586 (1979)



Carroll v. Human Resources Division, 27 MCSR 157 (2014)

Baston v. Human Resources Div., 29 MCSR 64 (2016)

Goggin v. Boston Police Dept., 29 MCSR 79 (2016)

O’Connell v. Human Resources Div., 29 MCSR 94 (2016)

Carroll v. Worcester Housing Authority, 21 MCSR 309 (2008)



Cascino v. City of Boston, 28 MCSR 194 (2015)


Cataldo v. Human Resources Division, 23 MCSR 617 (2010)

Baston v. Human Resources Div., 29 MCSR 64 (2016)

Gleason v. Human Resources Div., 29 MCSR 11 (2016)

Goggin v. Boston Police Dept., 29 MCSR 79 (2016)

O’Connell v. Human Resources Div., 29 MCSR 94 (2016)

O’Neill v. Human Resources Div., 29 MCSR 186 (2016)

Catterall v. City of New Bedford, 20 MCSR 196 (2012)


Cavaco v. Department of Correction, 27 MCSR 436 (2014)


Choukas v. Boston Police Department, 48 Mass. App. Ct. 1116 (2000)


City of Attleboro v. Civil Service Commission, C.A. BRCV2011-00734 (Mac-Donald, J)



City of Beverly v. Civil Service Commission et al., 78 Mass. App. Ct. 182(2010)



DE

CIS

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CITE AS 29 MCSR PB <LCR Header> Decisions of the Civil Service Commission—2016 CITE AS 29 MCSR 129

PAUL F. BAKER

v.

DEPARTMENT OF DEVELOPMENTAL SERVICES

D1-14-42

March 4, 2016 Paul M. Stein, Commissioner

Layoff Action-Elimination of Position-Closing of Fernald Devel-opment Center-Bias-Operational Justification—DDS established

that it had acted properly when laying off a vocational instructor as a part of the closure of the Fernald Development Center. The Appellant’s claims of bias were without merit and the operational and economic justification for the layoff incontrovertible. The selection of the Appel-lant for layoff, rather than a more senior habilitation coordinator, was also found to be a reasonable management decision under the circum-stances and not one that the Commission wished to second guess.

DECISION

The Appellant, Paul F. Baker, acting pursuant to G.L.c.31, §39 & §43, duly appealed to the Civil Service Commission (Commission) from the decision of the Massachusetts

Department of Developmental Services (DDS) to lay him off in February 2014 from his position of Vocational Instructor C as part of a reduction in force at the Fernald Development Center (Fernald). The Commission held a pre-hearing conference on March 11, 2014 and a full evidentiary hearing on April 22, 2014.1 The hearing was declared private as no party requested a public hearing. Eighteen (18) exhibits were received in evidence and one exhibit was marked for identification. The hearing was digitally recorded.2 Both parties subsequently submitted proposed deci-sions.

FINDINGS OF FACT

Based on the Exhibits in evidence and the testimony of the wit-nesses (Susanne Kingston, Acting Facilities Director, Fernald Development Center; Donald Stevens, Employment Services Manager for the DDS Metro Region; and Mr. Baker), and all rea-sonable inferences therefrom, I make the following findings of fact:

1. The Appellant, Paul F. Baker, served as a tenured civil service employee of the DDS from August 1972 until his layoff, effective February 8, 2014. Since 1997 and as of the time of his layoff, he had been assigned to Fernald, a residential DDS facility for indi-

viduals with developmental (among other) disabilities located in Waltham, MA, where he held the position of Vocational Instructor C. (Exh. 10; Stipulated Facts; Exh. 12)

2. Mr. Baker was laid off along with fifteen (15) other Fernald staff as one of the final reductions in force attributable to the lack of work due to the impending closure of Fernald and the transition of the residents to other facilities, which began in 2003. At the time of the Commission hearing, the number of Fernald residents, once approximately 1,200 in number, had declined to a census of six (6) individuals. (Exh. 7; Testimony of. Kingston & Stevens)3

3. Fernald had made approximately seven (7) other layoffs prior to February 2014. Mr. Baker was the last (most senior) Vocational Instructor C still assigned to Fernald, the six (6) other more junior employees in the title of Vocational Instructor C having been laid off in 2010. (Exh. 14; Testimony of Kingston & Stevens).

4. Mr. Baker was one of two remaining Fernald clinical staff whose primary duties involved supporting the “Site 7 program”, which provided educational and work activities to the residents, akin to employment. In February 2014, the principal workshop activities included a paper shredding project and an “AIDS kit” assembly project. The other clinical staff member with workshop-related re-sponsibility was the Habilitation Coordinator (HABCO). (Exhs. 4, 5, 5A & 6; Testimony of Appellant & Kingston)

5. Every resident of Fernald had an Individual Service Plan (ISP) developed and reviewed annually jointly by Fernald’s clinical staff, including the Vocational Instructors and the HABCO, as well as medical staff. The ISPs contain personalized goals and ob-jectives across a number of areas, of which workshop goals are a part. The workshop goals are akin to employment and are the re-sponsibility of the HABCO to develop and monitor progress on a daily and weekly basis.(Exhs. 6, 9 & 10; Testimony of Kingston)

6. The HABCO is a separate and distinct job in a different job series from a Vocational Instructor. A Habilitation Coordinator is a Grade 18 position (whereas the Vocational Instructor C is rated as a grade 14A). The duties of the HABCO include the responsibility to “design, implement and monitor educational programs” and “[i]mplement individuals’ programs through hands on direct service for a minimum of 50 percent of the Habilitation Coordinator’s work week.” The Vocational Instructor C is responsible to work under the supervision of the Day Program Director or Program Manager to “assist with the Site 7 individuals in work related ac-tivities” and “provide support to the HABCO and clinical team.” (Exhs. 4 5, 5A & 6: Testimony of Appellant & Kingston)

1. The Standard Adjudicatory Rules of Practice and Procedure, 801 CMR §§1.00, et seq., apply to adjudications before the Commission with Chapter 31 or any Commission rules taking precedence.

2. If there is a judicial appeal of this decision, the plaintiff in the judicial appeal would be obligated to supply the court with a transcript of this hearing to the ex-tent that he/she wishes to challenge the decision as unsupported by the substantial evidence, arbitrary and capricious, or an abuse of discretion. In such cases, this CD

should be used by the plaintiff in the judicial appeal to transcribe the recording into a written transcript.

3. Fernald finally ceased operations in December 2014 and the facility was trans-ferred from the Commonwealth to the City of Waltham. (http://www.mass.gov/anf/property-mgmt-and-construction/sale-and-lease-of-stateassets/comprehen-sive-real-estate-serv/real-estate-projects/waltham-former-walter-e-fernald-de-velopmentcenter.html])

CITE AS 29 MCSR 158 KEVIN FARRELL Decisions of the Civil Service Commission—2016 CITE AS 29 MCSR 159

JOHN SPILLANE

v.


D1-14-173


Demotion-Tenured Civil Service Position-Fernald Development Services Worker-Ineffective Waiver of Rights-Just Cause for De-

motion-Bumping Rights—An appeal from a demoted social worker at the Fernald Development Center in Waltham was rejected by the Commission where the appellant had refused to accept a position in the same grade at a nearby facility and had instead elected to take a demo-tion and remain at Fernald. There was no question as to the “just cause” for the demotion as the facility was in the process of being closed down and the property transferred to the City of Waltham.

DECISION ON MOTIONS FOR SUMMARY DECISION

The Appellant, John Spillane, brought this appeal to the Civil Service Commission (Commission), asserting that his em-ployer, the Massachusetts Department of Developmental

Services (DDS) violated his civil service rights in connection with a reduction in force at the Fernald Development Center in Waltham, MA (Fernald), where he had been employed and which resulted in his unlawful demotion. Each party submitted a Motion for Summary Decision and appeared at a motion hearing before the Commission on October 30, 2014, which was digitally record-ed and copies were provided to the parties.1

FINDINGS OF FACT

Based on the submissions of the parties, and after hearing the par-ties at the motion hearing, I find the following facts to be undis-puted:

1. The Appellant, John Spillane, held the tenured civil service po-sition of Developmental Services Worker IV (DSW-IV), with a seniority date of August 10, 1982. As of July 2014, Mr. Spillane worked at Fernald, located in the DDS Metro Region. (DDS Motion, Exh. “C”; Appellant’s Motion, Exh.5)

2. Fernald once housed hundreds of developmentally disabled in-dividuals. As part of a decades-long strategy to eliminate large institutional settings, by July 2014, most Fernald residents had been moved to smaller “community houses.” (DDS Motion; Uncontested Representations of DDS at Motion Hearing) 2

3. Ten (10) DSWs remained at Fernald in July 2014. Mr. Spillane was one of three DSW-IVs (one with more seniority and one

with less seniority) whose positions were then eliminated. (DDS Motion; Appellant’s Motion; DDS Representation at Hearing)

4. No other DSW-IV positions then existed in the Metro Region. Elsewhere, ten DSW-IV vacancies and positions existed as fol-lows:

• Northeast Region - Two vacancies & one position held by a provi-sional employee appointed 11/25/2012

• Southeast Region - Four positions held by provisional employees as follows:

Position 7994 - Wrentham - appointed 10/6/2013

Position 28359 - Brockton - appointed 10/21/2012

Position 34196 - Brockton - appointed 11/5/2000

Position 1009 - Wrentham - appointed 5/1/1988

• Central Region - Two positions, one held by a tenured employee less senior than Mr. Spillane and one held by a provisional employee ap-pointed 5/8/1979

• West Region - One position held by a provisional employee appoint-ed 8/30/1981 (DDS Motion, Exh.”C”; (Stipulation of the Parties)

5. The DSWs at Fernald are members of Local 402, AFSCME Council 93 (the “Union”), in Bargaining Unit 2, and subject to the terms of a Collective Bargaining Agreement (CBA) duly execut-ed by the Union and the Commonwealth under the provisions of G.L.c.150E. (DDS Motion; Appellant’s Motion & Exh. 7)

6. Article 18 of the CBA, entitled “Layoff - Recall Procedure” provides, in part:

Section 1. Applicability

The provisions of this Article shall apply only to non-civil ser-vice employees and shall not apply to the separation from a po-sition by reason of the certification of a c. .ivil service list by the Personnel Administrator.

Section 3. Layoff Notice to Union/Notice to Employee

In the event that Management becomes aware of an impending reduction in workforce, it will make every effort to notify the Union at least ten (10) calendar days prior to the layoff. Manage-ment will notify the affected employees in writing not less than five (5) working days in advance of the layoff date. The notice to employees shall contain a restatement of Section 4 below. When-ever practicable, affected employees will have four (4) working days to exercise their bumping rights, but in no event less than two (2) working days to exercise their rights. Management will provide the Union with updated seniority lists, which may im-pact specific titles due to the layoff, as soon as possible but not later than ten days prior to the layoff.

Section 4. Displacement-Bumping Procedure

. . .


2. Fernald finally ceased operations in December 2014 and the facility was sold to the City of Waltham. (http://www.mass.gov/anf/property-mgmt-and-con-struction/sale-and-lease-of-state-assets/comprehensivereal-estate-serv/real-es-tate-projects/waltham-former-walter-e-fernald-development-center.html])

CITE AS 29 MCSR 160 JOHN SPILLANE

B. Employees whose position(s) are being eliminated shall have the right to exercise their bumping rights by accepting a transfer to a position in the same title for which the employee is deter-mined qualified by the Appointing authority. Employees choos-ing to transfer in accordance with this provision may transfer:

1. Into the position of the least senior employee in their facil-ity; or

2. Into the position of the least senior employee in their region/area if such least senior employee is less senior than the least senior employee in the facility; or

3. Into the position of the least senior employee in any region/area if such employee is less senior than the least senior em-ployee in the region/area in which the reduction occurred

C. 1. Employees whose positions are being eliminated may elect to bump to a lower title in his/her bumping corridor in the bar-gaining unit for which the employee is qualified in the “facility” in which the employee presently works to the position of the least senior employee in the title, provided that there are per-sons(s) with less seniority who are in the lower title.

. . .

(DDS Motion, Exh. “B”)(emphasis added)

7. Mr. Spillane received a “Bargaining Unit 2 Election Form”, which he completed after discussions with Donald Stevens, the DDS Metro Region Human Resources manager about the most likely DSW IV positions that would be open to him as the number two most senior DW IV, i.e., a Northeast Region vacancy and the least senior provisional position in Wrentham, but Mr. Spillane submitted his election form stating he would only accept reassign-ment to a DSW IV position in Brockton, otherwise he preferred to stay at Fernald and be demoted to DSW III. 3

(DDS Motion, Exh. “A”; Affidavit of Donald Stevens; Appellant’s Motion)

8. The Election Form refers to a “receipt of notice” concerning the reduction in force which was not attached and was not provided to the Commission. I infer, however, as the form is a collective bar-gaining unit form, the referenced notice was required by the CBA. Article 18, Section 2. (DDS Motion, Exhs. “A” & “B”; Affidavit of Donald Stevens)

9. By letter dated July 22, 2014, Mr. Stevens informed Mr. Spillane: “based on your seniority and choices”, he would be de-moted to DSW-III on the second shift at Fernald, one of the two positions he had listed in completing the form. (DDS Motion, Exh. “D”)

10. Both of the other Fernald DSW-IVs picked the vacancies in the Northeast Region. If Mr. Spillane had indicated his willing-ness to be reassigned to the Wrentham DSW IV, he would have been offered that job. (Stipulation of the Parties at the Motion Hearing)

11. On July 24, 2014, Mr. Spillane filed this appeal. (Claim of Appeal)Applicable Legal Standard

A motion for summary decision of an appeal before the Commission, in whole or in part, may be filed pursuant to 801 C.M.R. 1.01(7)(h). These motions are decided under the well-rec-ognized standards for summary disposition as a matter of law, i.e., “viewing the evidence in the light most favorable to the non-mov-ing party”, the undisputed material facts affirmatively demonstrate that the non-moving party has “no reasonable expectation” of pre-vailing on at least one “essential element of the case.” To survive a motion for summary decision, the non-moving party must offer “specific facts” which establish “a reasonable hope” to prevail af-ter an evidentiary hearing. Conclusory statements, general deni-als, and factual allegations not based on personal knowledge are insufficient to establish a triable issues. See, e.g., Milliken & Co., v. Duro Textiles LLC, 451 Mass. 547, 550n.6, (2008); Maimonides School v. Coles, 71 Mass. App. Ct. 240, 249 (2008); Lydon v. Massachusetts Parole Board, 18 MCSR 216 (2005)

Applicable Civil Service Law

[P]ermanent employees . . . having the same title in a departmen-tal unit are to be separated . . . because of lack of work or lack of money or abolition of positions . . . according to their seniority . . . so that employees senior in length of service, computed in accordance with section thirty-three, shall be retained the lon-gest. . . .

Any action by an appointing authority to separate a tenured em-ployee from employment for the reasons of lack of work of lack of money or abolition of positions shall be taken in accordance with the provisions of section forty-one. Any employee who has received written notice of an intent to separate him from employ-

3. The substance of the communications between Mr. Spillane and Mr. Stevens are disputed, but these disputed facts are not material to the Commission’s decision on the pending motions.

CITE AS 29 MCSR 164 ANDREW STACY

ANDREW STACY

v.


D1-14-242


Demotion-Tenured Employee at Templeton Development Cen-ter-Closing of Facility-Just Cause-Appeal Filed Late—The

Commission lacked jurisdiction to hear the appeal of a demoted em-ployee at the DDS Templeton Development Center given that it was filed months after he learned of his demotion. Even had the appeal been timely filed, the Department had just cause for a demotion given that it was closing the Templeton facility and transferring some of the person-nel to community homes.

DECISION

The Appellant, Andrew Stacy, acting pursuant to G.L.c.31, §39 & §43, duly appealed to the Civil Service Commission (Commission) from the decision of the Massachusetts

Department of Developmental Services (DDS) to demote him from his position of Direct Services Worker III (DSW-III) to Direct Services Worker II (DSW-II) as part of a reduction in force at certain DDS institutional facilities. Following a pre-hearing conference on December 16, 2014, pursuant to the Commission’s Procedural Order, DDS filed a Motion To Dismiss the appeal for lack of jurisdiction, which Mr. Stacy opposed. The parties agreed to submit the motion for decision on the papers and that a motion hearing was not required.1

FINDINGS OF FACT

Based on the submission of the parties and all reasonable infer-ences drawn in a light most favorable to the Appellant, I find the following material facts are not disputed:

1.The Appellant, Andrew Stacy, is a tenured DDS employee with a DDS seniority date of April 17, 1983. He held the civil service title of DSW-III from November 10, 1991 until the demotion that is the subject of the present appeal, and was assigned to the DDS Templeton Development Center (Templeton) within the DDS’s Central/West Region. Mr. Stacy also served as the president of the local union, AFSCME Council 93, Local 554 (the Union) which represents DSWs and certain other direct care DDS employees in the DDS Central West Region. (Procedural Order; DDS Motion [Tranghese Aff’t]; Appellant’s Opposition [Stacy Aff’t])

2. DDS is a state agency within the Executive Office of Health & Human Services (EOHHS) which manages and oversees a system of specialized services to support individuals with intellectual dis-abilities. DDS provided these services through institutional facili-ties, as well as community-based programs, including community residences across the Commonwealth. Approximately ten years ago, DDS began to transition away from institutional facilities and to increase the number of community residences it operates. (DDS Motion [Tranghese Aff’t])

3. In December 2008, DDS announced plans for the closure of the three DDS institutional facilities within the Central/West Region, including Templeton, Monson Developmental Center and Glavin Regional Center. At the time of this appeal, Templeton was slated to be closed on or about January 31, 2015. (Procedural Order; DDS Motion [Tranghese Aff’t]; Appellant’s Opposition [Stacy Aff’t])2

4. In order to lessen the impacts of the Templeton closure on both employees and institutional residents, DDS established six new community residences in nearby towns. In addition, three exist-ing homes on the Templeton campus were identified to be con-verted into state-operated community homes. The facility closure plan also included the construction of three new duplexes on the Templeton property. (DDS Motion [Tranghese Aff’t])

5. The newly established community homes called for staffing at the DSW-II level or below. Between 2009 and 2014, DDS and the Union negotiated a number of agreements which provided a process for initial staffing of the new community residences which provided priority, according to seniority, to employees of the DDS facilities that were being closed. As Union President, Mr. Stacy participated personally in the negotiation of these agreements. (Procedural Order; DDS Motion [Tranghese Aff’t]; Appellant’s Opposition [Stacy Aff’t])

6. In early 2014, DDS and the Union reached a Memorandum of Agreement (MOA) on the bidding process for the newly created community homes located on the Templeton campus. The MOA gave Templeton employees holding certain titles (including DSW-II, DSW-III and DSW-IV) first priority, according to seniority, to bid on positions in the identified community homes.

If a DSW-III or DSW-IV elected to bid on an available DSW-II position, the MOA provided that “the employee shall be volun-tarily demoted to the respective title. Employees electing to vol-untarily demote shall be paid at the appropriate rate in the select-ed title in accordance with the collective bargaining agreement.” (DDS Motion [Procedural Order; Tranghese Aff’t & Exh. 1]; Appellant’s Opposition [Stacy Aff’t, Exh.2])


2. At the time of the Commission hearing, Mr. Stacy continued to hold his DSW-III position at Templeton. DDS counsel subsequently confirmed that Templeton closed on February 3, 2015 and I infer that Mr. Stacy was demoted to the posi-tion of DSW-II effective on or about that date. (DDS Motion [Tranghese Aff’t]; Administrative Notice [E-mail from Wendy Chu, Esq. dated2/9/2016])

CO

MM

EN

TA

RY





MCSR Commentary–Volume 28 C-21

The Commission 2015 Year End Statistics as of December

31, 2015 are now available on the Civil Service Commis-

sion website. Year-to-date, the Commission has received

171 new discipline, bypass and layoff appeals and has closed out

204. The current case inventory is 90, thirty-three cases less than

last year.

Discipline Decisions

Discharge For Medical Incapacity

An Appointing Authority may terminate an employee who is

medically incapable of performing his position, the Commission

ruled in Morgan v. Town of Billerica, 28 MCSR 503.

Appellant began employment with Billerica in November 2001

as a Heavy Motor Equipment Operator (HMEO). He went out on

leave in September 2012 due to work-related injuries with an un-

known return date, and quickly exhausted his paid leave benefits.

Since the Town needed someone to work in his position, they ter-

minated Appellant in June 2013, but offered to reappoint him

once he received medical clearance and a position became va-

cant.

On appeal, the Appellant argued that the Town was not justified

in discharging him from his position; the Commission disagreed.

The undisputed fact that Appellant was unable to perform his job

duties constituted just cause for terminating him, and contrary to

Appellant’s argument that he should have been kept on payroll

for health insurance purposes, the Town was not obligated to do

so and it would have been an undue burden on their finances and

productivity. The Commission has previously held that an ap-

pointing authority may terminate an employee who is medically

incapable of performing his position. See Bracket v. Gloucester

Housing Authority, 10 MCSR 27 (1997).

Liar Liar

Inappropriate employee behavior, such as making baseless crim-

inal allegations against superiors, justify discipline and discharge

from employment. In Condez v. Town of Dartmouth, 28 MCSR

515, the Commission upheld the termination of a Police Sergeant

where he made blatantly false allegations of child abuse against

his Chief, that were clearly in furtherance of his personal animus.

The Appellant began his career with the Dartmouth Police De-

partment in 1998. He served as President of the Dartmouth Po-

lice Brotherhood (Union) and maintained a side business fixing

computers. At work, he offered technology support to the De-

partment’s Information Technology Director. As part of his side

employment he helped fix a laptop belonging to the Chief’s wife.

The laptop contained mostly family photos of the Chief, his wife,

and their young toddler son.

In 2010, the Department updated its computer software. Each

computer required an individual activation key to run new soft-

ware; however Appellant overrode the settings of the activation

components so that these individual keys did not have to be pur-

chased for each computer, presenting an ethical issue regarding

software piracy. As a result, the Department computers operated

with unlicensed software for a number of years.

In March 2013, the Chief learned of the issue with the software

activation keys, and ordered an internal investigation; shortly

thereafter Appellant was placed on administrative leave. Appel-

lant then accused the Chief and his wife of taking pornographic

images of their son, which Appellant claimed to have seen when

fixing her laptop. The Department of Children and Families in-

vestigated the allegations and determined them to be blatantly

false.

The Appellant argued his suspension and subsequent termination

were unjustified, but the Commission ardently disagreed. The

Commission found the Town had just cause for termination in

Appellant’s improper behavior relating to the Department com-

puters, as well as his wholly false allegations against the Chief.

According to the Commission, the false allegations demon-

strated untruthfulness and unconscionable retaliatory behavior

motivated by an unfounded personal animus against the Chief.

Procedure 101

Chairman Christopher Bowman provided a clinic on Commis-

sion procedure in Tibbetts v. Town of Danvers, 28 MCSR 513,

which was subject to dismissal on at least three procedural

grounds.

The Police Department investigated Appellant, a Police Officer,

after she ran a license plate at the request of another Town em-

ployee. After the investigation, Appellant signed an agreement

accepting a two (2) day suspension and waiving any appeal to the

Civil Service Commission or Appointing Authority.

Despite having signed a settlement agreement accepting her dis-

cipline, Appellant filed an appeal directly with the Commission

contesting her suspension. However, the appeal was filed ten

days late, without the required filing fee. After the appeal was

refiled with the proper filing fee, the Commission dismissed the

appeal on three grounds: (1) the appeal was untimely as it was

filed more than ten days after the discipline was imposed; (2) the

MCSR Management Commentary September–December 2015

Philip Collins, Esq.

Tim Norris, Esq.

Melissa R. Murray, Esq.

Collins, Loughran & Peloquin, P.C.

C-22 MCSR Commentary–2015

appeal was filed directly with the Commission bypassing the Ap-

pointing Authority—a necessary step for suspensions of less

than five days imposed by a department head; and (3) “even if

[the] appeal had been timely, which it [was] not, and even if Ms.

Tibbetts had requested a local hearing, which she did not, she

does not dispute that she was given time to review the settlement

agreement and that she consulted with the local Union President

before signing the agreement.” Based on the above, the Commis-

sion found that it lacked jurisdiction to hear her appeal.

Bypass Decisions

Not Much Is Not Enough

Commissioner Cynthia Ittleman hinted that political consider-

ations may have been in play when the City bypassed Appellant

for initial appointment for police officer and sought his removal

from the civil service list based on two questionable infractions

and an unsubstantiated allegation of sick leave abuse. In Rivet v.

City of Lawrence, 28 MCSR 454, the City bypassed an employee

with 11 years’service as a Traffic Control officer for the City, and

many years of experience as a reserve officer in other communi-

ties.

In February 2014, Police Chief made conditional offers of em-

ployment to applicants with no glaring negative background is-

sues, including Appellant. The offer was contingent on him pass-

ing a physical abilities test, medical exam, and psychological

evaluation, which he did. Shortly thereafter, the Chief discussed

the hiring with the newly elected Mayor, who expressed concern

that not all candidates were treated equally in the hiring process

and decided to personally review each candidate’s background

investigation.

Upon review of Appellant’s file, the Mayor discovered that Ap-

pellant had previously received two warnings. In February 2012,

the City issued Appellant a verbal warning after a citizen alleged

that the Appellant had used abusive language when issuing a

parking ticket. Appellant denied the allegations, and grieved it

timely under his CBA. The City took no action against him, so he

believed it was dismissed. In April 2012, a motorcycle accident

severely injured Appellant. As a result, he was out of work for 11

weeks, using all of his PTO and unpaid leave. The City did not

inform Appellant about FMLA, which would have allowed him

more unpaid leave time. The City issued Appellant a written

warning for sick leave abuse, which he was not aware of for more

than two years and by that time, he was unable to grieve it.

In May 2014, the City bypassed Appellant for appointment de-

spite his conditional offer, attributing the bypass to the warnings

in his personnel file. In reviewing whether the City was justified

in bypassing Appellant, the Commission held that the warnings

did not constitute justification for the bypass. Specifically, the

Commission found that the City failed to conduct a reasonably

thorough review of the reasons for Appellant’s bypass, and never

interviewed him to permit him to address the warnings. Further,

the warnings were insufficient reasons for a bypass where they

were singular and minor in nature. The Commission made it

clear in this decision that when analyzing bypass cases citing

poor work performance as the justification, it will carefully con-

sider: the amount of performance issues; the severity of the

issues; and whether they were brought to the employee’s atten-

tion. The Commission similarly rejected the attempt to remove

Appellant from the civil service list which was premised on the

same flimsy reasons as the bypass. The Commission emphasized

that removal from the list is reserved for exceptional circum-

stances suggesting a higher standard than a mere bypass.

Objective Trumps Subjective

In a 3-1 vote, the Commission majority found the Town’s promo-

tional bypass reasons lacking where the Town disregarded as-

sessment center performance in favor of interviews that the ma-

jority felt were too subjective. In Daley v. Town of Wilmington,

18 MCSR 466, the Commission held that the subjective inter-

view could not trump the objective assessment center, and the

Appellant’s employment record and resume, which the majority

found to be better suited to the position of fire lieutenant than that

of the selected candidate.

Appellant was employed in the Town’s Fire Department as a

Firefighter beginning in 1995. He was a West Point graduate,

army veteran, completed several firefighter certification courses,

and was working towards an Associate’s Degree in Fire Protec-

tion and Safety. The Town began assessing candidates for a va-

cant Lieutenant position in February 2014. At that point, Appel-

lant was ranked first on a short list of eligible candidates.

The Town chose to obtain a new eligibility list rather than select

from the existing short list. An assessment center was held, and

out of twelve candidates, Appellant tied for third with another

firefighter. The Town also conducted interviews as a component

of the selection process. However, this component became the

entire evaluation when the Town chose to disregard the Assess-

ment Center rankings and select a candidate solely based on in-

terview performance. As a result, the town selected Ryan, who

had the highest interview score, but the lowest Assessment Cen-

ter score, and bypassed the Appellant (ranked fifth in the inter-

view) for the Lieutenant position. It was also revealed that Ryan

was made aware of the interviews six weeks before notice of the

interviews was provided to other candidates seeking the position.

The Commission majority rejected the Town’s reasons for by-

passing the Appellant for promotion, finding that the interviews

were too subjective. The Commission pointed to situations in

which both candidates responded to questions with the same an-

swers, yet Appellant’s answers were scored lower. The Commis-

sion also took issue with the Town’s criticism of Appellant’s ca-

sual dress and informal way of addressing his superior officers

during the interview, finding that these matters have “no basis in

merit principles.” Ironically, the majority also criticized the

Town for failing to give Appellant extra credit for attending West

Point and his military service, which despite Appellant’s infor-

mality in the interview, apparently made him a better fit for the

“paramilitary” environment of the fire service.

In his dissent, Commission Chairman Bowman observed that it

was not the Commission’s role to evaluate the candidates, and

chided the majority for substituting its judgement for that of the


appointing authority. According to Bowman, the majority ig-

nored the fact that the Appellant refused to testify at his own

hearing before the Commission, and engaged in undue specula-

tion by suggesting that the town altered the results to keep the se-

lected candidate form leaving the employ of the town. “The

Commission’s role, while important, is mostly limited to assess-

ing whether the Appointing Authority conducted a reasonably

thorough review and produced valid reasons that are free of per-

sonal or political bias.”

Labor Service: No Statement of Reasons Required

When hiring into labor service positions, there is no requirement

for the Appointing Authority to provide non-selected candidates

with sound and sufficient reasons for their non-selection as long

as the selected candidate comes from the first “2N + 1” candi-

dates for appointment. Vella v. City of Cambridge, 28 MCSR

514.1 The Commission held that non-selection in this situation

does not constitute an appealable bypass.

Appellant began working for the City in September 2010 as a

Parking Control Officer. The City sought Traffic Maintenance

Workers through promotional appointments in 2015, and Appel-

lant applied for a position. The City did not select Appellant, but

the selected candidate came from within the 2N + 1 formula. Ap-

pellant filed an appeal with the Civil Service Commission. On

the City’s motion to dismiss, the Commission concluded that the

City correctly promoted individuals within the statutory 2N + 1

formula, therefore its decision not to hire the Appellant did not

constitute a bypass requiring a statement of reasons. The appeal

was dismissed.

One Piece Of The Puzzle

Where the civil service exam is only one component in the ap-

pointment process, a municipality may bypass a candidate de-

spite their high performance on the exam. In Stabile v. Town of

Andover, 28 MCSR 461,2 the Town bypassed Appellant for a pro-

motion despite his having the highest civil service examination

score among all candidates.

In December 2014, the Fire Chief, requested a Certification list

to fill a Deputy Fire Chief position. Appellant had the highest

civil service examination score of the three candidates and had

been employed with the Town for 26 years, serving as a Lieuten-

ant since 1996. He also had an Associate’s Degree in Fire Protec-

tion and Safety Technology, received over 1100 hours of train-

ing, and had obtained more than two dozen certifications.

Candidates were required to participate in interviews with a

panel of local fire chiefs. The panel welcomed resumes, letters of

recommendation, certifications, and other materials for consid-

eration. After reviewing civil service scores, interview scores,

and supporting materials, the Town recommended bypassing

Appellant in favor of another candidate, Gibson. The Town

chose Gibson because: (1) he had the same degree as Appellant,

an Associate’s degree, but was close to attaining a bachelor’s de-

gree in Fire Science (Appellant had not pursued any higher

education since 2001); and (2) Gibson scored much better in an

interview conducted by five experienced fire chiefs from the

area.

Prior to appealing to the Commission, the Appellant sought as-

sistance from the Board of Selectmen Chairman, Director of Hu-

man Resources, and Town Manager in reversing the bypass,

none of whom intervened. Appellant’s brother, a former Town

Selectman, also began soliciting assistance from officials. He

told the Director of Human Resources that he was “witness to the

Chief’s arrogance and resistance to management and HR direc-

tion.” Further, when it became clear none of the officials were in-

tervening, Appellant’s brother e-mailed the Town Manager, criti-

cizing him for being “manipulated” by Chief Mansfield, and

stating “[d]espite your departure this summer, I had hoped that

you would not check out on your duties as Town Manager, but

this action indicates that my assumption was premature.”

The appeal tasked the Commission with determining if the Town

had justification to bypass Appellant, and it held that the Town

had such justification. While the Appellant topped the examina-

tion list for promotion to Deputy Fire Chief seven points ahead of

the next highest candidate, the Commission deemed the variance

insignificant since the civil service examination score is only one

factor in the appointment process. Further, the Commission cred-

ited Gibson’s superior educational credentials and interview per-

formance as acceptable rationale in his appointment and Appel-

lant’s bypass.

Notably, the Town proved to the satisfaction of the Commission

that the only evidence of violating merit principles was the inter-

vention of Appellant’s brother—a former selectman—into the

process once it was known who the Chief was recommending to

the Town Manager. See also Recupero v. City of Chelsea, 28

MCSR 137 (2015), where the Commission majority rebuffed the

Appellant’s father, a sitting City Councilor, for initiating several

phone calls to the police chief advocating for his son’s hiring as a

police officer.

Bypasses Based on Alleged Drug Use Post-Boston Hair Drug TestAppeals

There have been only two Commission bypass decisions involv-

ing hair drug testing since the Boston Hair Drug Test Appeals, 26

MCSR 73 (2013). The first was Lecorps v. Department of Cor-

rection, 26 MCSR 519 (2013), an original appointment bypass

case in which the Appellant claimed that he had tested positive

because he innocently ate a brownie at a party that he did not re-

alize contained pot. In that case, the Commission upheld the by-

pass, but the Commission warned that even with original ap-

pointment cases (as opposed to discipline cases involving drug

testing), Appointing Authorities should take steps to address the

factors/concerns highlighted by the Commission in the Boston

Hair Drug Test Appeals.

1. Joshua R. Coleman of Collins, Loughran and Peloquin P.C., represented theCity of Cambridge.

2. Joshua R. Coleman of Collins, Loughran and Peloquin P.C., represented theTown of Andover.


The second case is Gannon v. Boston Police Department, 28

MCSR 541, a bypass appeal decided by the Commission in Oc-

tober, 2015. In Gannon, as opposed to Lecorps, the Appellant de-

nied any and all drug use, and had previously tested negative in

2006, 2007, 2008, April 21, 2010 and in 2012. Also, contrary to

the Appellant in Lecorps, Gannon immediately went to the po-

lice department and sought his own independent drug test after

being informed of the positive test. Lecorps on the other hand

waited nearly a month to retest.

Notwithstanding his multiple negative drug tests and claims that

a mistake had been made, the Boston Police Department (BPD)

justified its bypass decision on its practice of never considering

any candidates after they have tested positive. The Commission

disagreed. Given the unique circumstances and unreliability of

hair drug testing (see Boston Hair Drug Test Appeals), the Com-

mission allowed Gannon’s appeal and ordered that he be placed

at the top of the current or future certification for the position of

permanent full-time police officer within the Boston Police De-

partment.

In rejecting the BPD’s policy of never considering candidates

who have tested positive, the Commission analogized that policy

to policies calling for the automatic bypass of candidates with

criminal histories. According to the Commission, while an ap-

pointing authority has wide discretion in bypass determinations,

it is not limitless, and Appointing Authorities cannot have a blan-

ket policy that precludes candidates who have criminal histories

or who have tested positive from any future employment. Con-

sideration must be given to the date, timing and circumstances

surrounding the testing or prior criminal acts.

Absolute Veterans’ Preference Does Not Apply To PromotionalAppointments

In Dupuis v. Town of Bourne and Norman Sylvester, 28 MCSR

603, Appellant Dana Dupuis filed a bypass appeal challenging

the Town’s failure to appoint him to the position of Fire Chief in

the Town of Bourne. The Town and the newly appointed Fire

Chief opposed the appeal and filed a Joint Motion for Summary

Judgment on the grounds that the Appellant had been errone-

ously granted a statutory veteran’s preference placing him at the

top of the list. They argued that without that preference, the Ap-

pellant would have been tied with Chief Sylvester, the selected

candidate, and that in the case of a tie, there is no bypass. In a de-

cision by Commissioner Paul Stein, the Commission agreed with

the Town and Chief Sylvester, and granted their Joint Motion.

On October 28, 2014, the Town of Bourne conducted an assess-

ment center for the position of Fire Chief. The Appellant, Deputy

Dupuis, Norman Sylvester and five others took part in the assess-

ment center. The scores from the assessment center were sent by

the Town’s consultant to HRD so that they could be recalculated

with statutory and/or education and experience points. The fol-

lowing assessment center scores were sent to HRD:

84% J. Mederios79% N. Sylvester77% D. Dupuis77% J. Feeney

76% J. Grasso76% D. Pelonzi74% D. Braley

After several miscalculations and attempts at awarding points

and establishing final scores, HRD finally sent the Town a re-

vised eligible list. Deputy Dupuis was at the top of the list. Rather

than award Dupuis two (2) preference points for his status as a

veteran, HRD awarded Dupuis an absolute veteran’s preference

which meant that he automatically moved to the #1 spot on the

list. All other candidates continued to be listed in order of their

scores (plus any statutory or experience points). The top three

candidates were interviewed (Dupuis, Mederios and Sylvester)

and following the interviews, the Bourne Board of Selectmen ap-

proved the appointment of Chief Sylvester. The Town notified

Dupuis, based on his position on the eligible list, that he had been

bypassed for the position of Chief. Dupuis filed an appeal with

the Commission.

At issue in the appeal was whether the Appellant was entitled to

the absolute veteran’s preference set forth in G.L. c. 31, §26 for

original appointment after an open competitive exam, or whether

the absolute preference only applies to original—i.e., ini-

tial—appointments to civil service, and not when the original ap-

pointment is clearly a promotion, such as the appointment to the

position of Fire Chief. Both HRD and Dupuis argued that Section

26 required that Dupuis be granted the absolute preference be-

cause the Town had used an open competitive examination. They

argued that the Personnel Administration Rules (PARs) define an

“open competitive examination” as “any examination for an

original appointment which is open to all members of the pub-

lic….” HRD argued that because an open competitive examina-

tion by definition results in an “original appointment”, the first

paragraph of Section 26 must apply, and veterans (and disabled

veterans) are moved to the top of the eligible list.

The Town and the Chief disagreed, and argued that the history

and intent of the statutory veteran’s preference was to provide a

preference to veterans in the original selection for employment

in civil service; it was not intended to be awarded over and over

again once a veteran had already gained entry into the system.

Palluccio v. Department of Revenue, 28 MCSR 118 (2015)

(“veteran’s preference was meant to facilitate original entry into

civil service but not advancement”). While there was some re-

cent and significant case law on the Town and the Chief’s side,

HRD and the Appellant argued that the cases cited involved the

issue of veterans preference and provisional appointment/pro-

motions, and that they had to be considered in that limited con-

text.

The Commission agreed with the Town (and not with HRD), and

held that the Appellant was not entitled to an absolute veteran’s

preference in his efforts to be promoted to the position of Bourne

Fire Chief. Rather, according to the Commission, Dupuis was

entitled to the two (2) point administrative preference allowed

under PAR.14(2), which when added to his score would have re-

sulted in Mr. Dupuis and Chief Sylvester being tied at 79%. The

result, as those familiar with civil service are already aware, is a


tie, and there is no bypass when the selected candidate and the

aggrieved candidate are tied.

Update: DOC and the 27-Year Quest for a Captain’s Promo-tional Examination

In the last round of commentary we shared a little bit of civil ser-

vice history with you when we commented on the request by

three permanent Lieutenants at the Department of Correction

(DOC) for an investigation by the Commission into why HRD or

DOC has never—in over 27 years—held a promotional exami-

nation for the position of Captain (or the predecessor position

Assistant Deputy Supervisor). In Re: Request by Mograss,

Hocking and McLaughlin to Investigate the Failure to Adminis-

ter Civil Service Examinations For the Public Safety Position of

Captain at the Massachusetts Department of Correction, 28

MCSR 261.

At last report, the Commission had determined that, “[u]nless

and until the statute is amended, DOC and HRD must move for-

ward with a resolution that results in compliance with the civil

service law and rules related to the public safety position of Cap-

tain at DOC.” HRD and DOC were given ninety (90) days to pro-

pose the most cost effective and efficient means of ensuring com-

pliance with the law. For those that are interested, here is what

the Commission ultimately ordered with respect to this situation:

1. HRD and DOC must take all necessary steps to: (a) create a pro-motional exam for the position of Captain at DOC; and (b) create alist of eligible candidates for the position of Captain that will beused to create Certifications which will be used to make promo-tional appointments to the position of Captain at DOC.

2. HRD and DOC shall provide the Commission with six (6) monthstatus updates.

3. Once an eligible list for Captain is established, all individualsserving as Provisional Captains at DOC prior to the date of theCommission’s Order (December 10, 2015) shall be made perma-nent and given tenure.

4. Relief provided to individuals covered by #3 shall not apply to in-dividuals provisionally promoted after the date of the Commis-sion’s Order. Individuals promoted after the date of the Order willbe required to comply with applicable civil service rules and laws inseeking promotional appointment to the position of Captain.

In Re: Request by Mograss, Hocking and McLaughlin to Investi-

gate the Failure to Administer Civil Service Examinations For

the Public Safety Position of Captain at the Massachusetts De-

partment of Correction, Response to Request for Investigation,

28 MCSR 601. �


Appointment, Promotion and Bypass Cases

In a bypass case, the issue for the Commission is not whether

it would have acted as the appointing authority had acted, but

whether, on the facts found by the Commission, there was

reasonable justification for the action taken by the appointing au-

thority in the circumstances found by the Commission to have

existed when the appointing authority made it decision. The

Commission’s role, however, is rather narrow in scope: review-

ing the legitimacy and reasonableness of the appointing author-

ity’s actions. In Sitar v. Lawrence, 28 MCSR 558 (2015), the

Commission found that the appointing authority’s background

check (consisting of reviewing online news stories) was “shock-

ingly deficient.” Despite the above mentioned role, the Commis-

sion decided as a result of its de novo hearing into the petition

that the applicant was justifiably bypassed. Huh?

It seems to this observer that the finding that a shockingly defi-

cient appointing authority review process would result in an in-

sufficient record for an appointing authority to have to establish

reasonable justification for the action it took. However, the Com-

mission determined that the additional information presented by

the petitioner before the Commission “…establishes that the (ap-

pointing authority) has reasonable justification to bypass…”.

(Id. at 564)

Contrasting that outcome with the decision in Daley v.

Wilmington, 28 MCSR 466 (2015), the confusion only becomes

more intense. Delving into the morass of the interview process,

the majority asserts that “to bypass a long term employee for a

promotion because of a slip of the tongue is not reasonably justi-

fied.” (Id. at 471) The majority go on to point out that two appli-

cants gave “essentially the same answer” to the same question,

yet one applicant “was scored lower with no reasonable justifica-

tion.” (Id.) These conclusions (and others) were used to find that

the appointing authority had failed to “ensure a level playing

field” and “protect candidates from arbitrary action and undue

subjectivity on the part of the interviewers” (Id.)

The unavoidable conclusion is that, on paper, the appointing au-

thority had reasonable justification (interview scores) that sup-

ported the bypass. The Commission’s de novo review destroyed

that justification due to the Commission’s finding that the level

of subjectivity that it found in its review of these interviews was

just too high.

Chairman Bowman argued in his strongly worded dissent that

the majority was acting as an impermissible “super-appointing

authority” when it evaluated the respective candidates. He went

further, chastising the majority for not holding the appellant’s

failure to testify before the Commission against him as having

denied the Commission the opportunity to use his own testimony

to assess his interview performance. (Id. at 473)

Sitar’s appearance prompted his appeal’s dismissal. Daley’s reti-

cence might have saved his appeal. In both cases, the Commis-

sion’s de novo inquiry was key to the outcome.

The Commonwealth’s Department of Correction (given its pub-

lic safety function) is one of just a few state agencies that still uti-

lize Civil Service/Human Resources Department protocols for

purposes of hiring, promotion and separation. In Nordstrom v.

Human Resources Department, 28 MCSR 445 (2015), the appel-

lant secured an original appointment to a Correction Officer I slot

in 1991 and a permanent promotion to the CO II title in 2007, a

position she worked in for the next five years.

Beginning in 2012 she began working in the non-civil service

position of Program Manager VII. In 2015 she applied to take a

CO III promotional examination. G.L. c. 31, s. 9 requires that all

candidates who wish to sit for promotional exams be “employed

in the departmental unit for as civil service employees for at least

one year immediately preceding the date of the examination.”

The Commission turned aside her argument that her placement in

a higher (non-civil service) title did not erase her permanent sta-

tus in a lower (civil service) title.

This type of dispute (what to do with provisional promotions) was

revisited at the highest of all Department of Correction levels in

Spencer v. Department of Correction, 28 MCSR 592 (2015). The

appellant in this matter took an open civil service test in 1980 and a

civil service promotional exam sometime later and passed both.

As a result he held a permanent position of CO II before he was

promoted several times over several years, ultimately resulting in

his 2011 appointment (with the consent of Governor Patrick) to

the post of Department of Correction Commissioner.

Tides will turn, and when certain deficiencies arose under his

watch, the same executives who so promoted him demanded his

resignation. Spencer complied, but also requested that he be al-

lowed to “revert” to his former civil service title. This request

was denied and his appeal followed. The record evidence re-

vealed 31 occasions when Correction employees with a perma-

nent position (working in higher non-civil service titles) were al-

lowed to so revert. (None of the 31 were working provisionally

in the title of Department of Correction Commissioner.) As-

serting that the Governor (at whose leisure Spencer served) was

Spencer’s appointing authority, the Commission asserted it had

no right to impose Spencer’s employment on another appointing

authority, the Department of Correction. To do so would necessi-

MCSR Commentary September–December 2015

Michael F. Manning, Esq.

NAGE/IBPO SEIU Local 5000


tate the Commission invoking “its equitable powers” (Id. at 599),

a step the Commission was not inclined to take. Part of the ratio-

nale for its disinclination was that such an order would force the

Department to accept as a Correction Officer II an employee who

had not performed in that “high-risk” occupation for some

twenty years. �

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