Publications: Massachusetts Merit System Reporter:
[Text 153-186, unformatted]

News: Reappointment, New Appointment, etc . . . . . . . . . . . . . 154

Origins of the M.C.S.C. by Alexander Macmillan . . . . . . . . . . . 155

M.C.S.C. Membership, 1884-1998 by Alexander Macmillan . . . . 157

Transcript of a Lecture by Richard Henry Dana, 1907 . . . . . . . . 160

Interview: Eric Wetzel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164

Notice of Right to Arbitrate . . . . . . . . . . . . . . . . . . . . . . . . . . 170 Commission's Report on Arbitration . . . . . . . . . . . . . . . . . . . . . 171

Commentary by Galen Gilbert . . . . . . . . . . . . . . . . . . . . . . . . . 172

Is an Employee Covered) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

Key to Digests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I . . . 177

List of Headings, Detail T.o.C . . . . . . . . . . . . . . . . . . . . . . . . . 178

Digest of Decisions, February through April 1997 . . . . . . . . . . . 180

1997 Amendments 186

List of Statutes reported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

State Employment Classification Statute . . . . . . . . . . . . . . . . . . 188

State Employee Grievance Statutes 200

commission Appointment Statute 201

List of Ordinances by Municipality 204

index of Massachusetts Civil Service Reporter 226

C.S.C. Rules of Practice and Procedure 228

Directory of Civil Service Personnel 241

In the Next Issue 242

 

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169 Volume 10, Spring, 1997

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Right to Arbitrate Notice

This notice is given to parties filing appeals at the Civil Service Commission.

NOTICE TO PARTIES

Section 576 of Chapter 151 of the Acts of 1996 allows parties to any proceeding before the Commission conducted pursuant to MGL chapter 31, section 43 to submit the matter to arbitration before an arbitrator selected pursuant to the procedures established by the Massachusetts Board of Conciliation and Arbitration or the American Arbitration Association. The arbitration option is voluntary and can be used only if all the parties to the case before the Commission submit written, notarized consent of their election to the Commission. If any party who has consented to arbitration fails to comply with the necessary procedural requirement to complete the arbitration process, any other party may petition the Commission to enter a default judgment.

Any costs of the arbitration alternative shall be borne by the parties, consistent with the rules of the Board of Conciliation and Arbitration or the American Arbitration Association. The Commission has no responsibility for the costs of the arbitration.

THEREFORE, PURSUANT TO SECTION 576 OF CHAPTER 151 OF THE ACTS OF 1996, THE PARTIES TO THIS MATTER MAY ELECT TO SUBMIT THE CASE TO ARBITRATION AT ANY TIME UP TO THIRTY (30) DAYS PRIOR TO THE COMMENCEMENT OF THE HEARING ORDERED BY THE COMMISSION.

An arbitrator selected by the parties pursuant to Section 576 shall have the same authority as the Commission would have on any proceeding before it in Section 43 and the arbitrator's decision will be subject to judicial review under the standards set out in Section 44. THE PARTY WHO FILED THE APPEAL WITH THE COMMISSION SHALL FILE WITH THE COMMISSION: A COPY OF THE ARBITRATOR'S AWARD, A COPY OF ANY NOTICE OF APPEAL SEEKING JUDICIAL REVIEW OF THE ARBITRATOR'S AWARD, AND A COPY OF ANY JUDICIAL DECISION(S) CONCERNING THE ARBITRATOR'S AWARD, EACH WITHIN TEN (10) DAYS OF ITS' RESPECTIVE ISSUANCE OR FILING.

Copies of the rules and regulations of the Board of Conciliation and Arbitration and the American Arbitration Association are available at the Commission's offices or you may call (617) 727-2293 to obtain a copy of those rules and regulations.

Massachusetts Merit System Reporter 170

THE COMMONWEALTH OF MASSACHUSETTS

CIVIL SERVICE COMMISSION

ONE ASHBURTON PLACE, Room 2112

BOSTON, MASSACHUSETTS 02108

TELEPHONE (617) 727-2293

WILLIAM F. WELD

GOVERNOR

CHRISTINE I- MOMS

CHAIRMAN

COMMISSIONERS

MARILYN ROLLINS

NICHOLAS ROUSSOS

DANIEL HARRINGTON

KEVIN TIVNAN

March 30,1997

The Honorable Paul R. Haley

Chairman, House Committee on Ways and Means

State House, Room 237

Boston, MA 02 108

RE: Report on Arbitation [sic] of Civil Service Commission Cases

Dear Chairman Haley;

Section 576 of Chapter 15 1 of the Acts of 1996 allows parties before the Civil Service Commission to elect arbitration in lieu of proceeding before the Commission. Pursuant to subsection (d) of said section 576 the Commission is required to report on the number of cases in which arbitration has been elected.

To date, there are -no cases in which the parties have elected arbitration.

Sincerely,

Christine E. Morris

Chairman

171 Volume 10, Spring, 1997

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Co entary

by Galen Gilbert,

Editor and Publisher

THE COMMISSION OVERRULES CONTRACTING OUT

Abolition of position cases are hard to win for employees, but Wayne Soini of AFSCME showed how in D-5569, Thibault v. Fall River. The Appellant was able to show that a financial analysis focusing only on him was meaningless. If the City has to save money, it must take an impartial review of the whole budget, not just the advantages of contracting out Mr. Thibault's duties.

NO TAKERS FOR ARBITRATION OPTION

In last year's budget an outside section required the Commission to offer to every appellant under Section 43 the option of foregoing hearings and arbitrating instead, Acts of 1996, Ch.151, Sec. 576, 10 MMSR 92. Paragraph (d) thereof required the Commission to report utilization of this new procedure, and that report is contained in this Reporter, at page 170-171. According to the report there was no one who asked to arbitrate.

Why, after such high hopes of clearing dockets with alternative dispute resolution, did this effort fail? The Commission sent out notices to appellants about this A.D.R. opportunity, so the problem was not implementation. I believe for the appellant there is almost no difference between the DALA Magistrate hearing and the Board of Conciliation and Arbitration arbitration. The third factor is that there are appeals under Section 44 that an appellant may need, in order to correct errors in the adjudication, as many do. There is no appeal from the arbitrator's decision. Should employees be worried about winning at the Commission and having the employer appeal to court? That can happen, but most of the time the employee wins again in court. It is difficult to overturn a Commission decision, and an employee's best shot at winning is usually at the Commission. Finally, Paragraph (b) requires that the parties pay for the cost of arbitrators. Unemployed appellants are not big spenders for procedures in which they usually lose anyway.

Alternative dispute resolution is developing in may areas into procedures for wealthy entities. As such it has almost no applicability in civil service, where the legislature, understanding the poverty that follows unemployment, has provided for appeal hearings without charge. I would be very surprised if anyone ever chose arbitration in lieu of a Civil Service Commission hearing.

NO RELIEF FOR BYPASSED APPLICANTS

Of all the selection and bypass cases, only once did the Commission rule against an employer, and in that case no effective relief was given. I represented the Appellant, Jack DiVincezo. The bypassed candidate, who was first

Massachusetts Merit System Reporter 172

Commentary

on the list, was ordered to be put first on a list where there is no vacancy and none likely in the foreseeable future; a Pyrrhic victory. These cases are very common, and very difficult to obtain relief in. The Commission is very deferential to appointing authorities in hiring decisions.

WHY ARE MAGISTRATES HEARING BYPASSING CASES?

A forum issue in bypass hearings is whether the evidence will be heard by the Commissioners themselves or by a DALA Magistrate. Under a statute, Sec. 2(b), 10 MMSR 99, the Chairman is required to appoint one or more Commissioners to hear these appeals. The statute is silent about a remedy if no such appointment is made and a DALA Magistrate is appointed instead. In most cases the parties are indifferent to who hears the appeals. With DALA there is often a better record, and having an experienced lawyer presiding makes evidential rulings more predictable. With Commissioners presiding it is a lot easier to have questionable evidence accepted, particularly post-appeal evidence, about which the Commission is very indulgent. However, in one case reported in these pages, G-3213, DiVincenzo v. Beverly. all three parties asked the Magistrate to recluse herself and then asked to have a Commissioner appointed to hold the hearing instead. Both requests were refused. As a tactical matter, making such a motion gives a losing party a good statutory argument to overturn any adverse decision.

The Commission also has a strong economic interest in this issue. There are too many bypass appeals for the Commission, with its present allocation of Commissioners, to hear them all. Referring these cases to DALA allows the Commission to excuse itself from holding these hearings. The issue is now pending in Superior Court.

A CASE THAT TURNED ON POST-APPEAL EVIDENCE

Regarding post-appeal evidence, in the case D-5202, Montero v. Dept. of Revenue, the entire outcome was determined by evidence of events that occurred after the appeal was filed. Apparently ripeness is not a requirement, despite Director of Civil Defense v. Civil Serv. Commission, 373 Mass. 401, 367 N.E.2d 1168 (1977), which required the dismissal of appeals if the decision was to come after the appeal was filed, on the basis that the agency might have changed its mind. In Montero, the agency might have held a hearing and vindicated the appellant, but the appeal to the Commission seemed to foreclose that outcome. Since the case was filed under Section 42, claiming the failure to hold a hearing, and that hearing was scheduled for the future when the appeal was filed, the entire outcome of the case turned on the review of subsequent events. The appellant proved that the hearing was later canceled and never held, and on this basis he won his appeal and back pay.

DISCHARGES FOR SICKNESS?

Can an employee be disciplined for sickness? In one case, D-5482, Mace v. Chelsea, the Commission's magistrate wrote ". . . an employee cannot be disciplined for being sick." While this may usually be the case I can think of exceptions, such as in the case of a probationary employee who is out for a long illness. Although there are many protections for sick employees, includ

173 Volume 10, Spring, 1997

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ing the Civil Service Commission itself, employers are not yet insurers of an employee's health. Employers nonetheless usually bring disciplinary cases under abuse of sick leave or try to get resignations after leaves of absence.

A CLIMATE OF COARSE LANGUAGE

In a decision on rudeness and coarse language, the Commission overruled the Boston Police Department because the Appellant's language was consistent with the culture that prevailed where coarse language was common (D-4895, Lawler v. Boston Police Dept.) This kind of decision makes it very hard to improve the civility in the Police Department, no matter what intentions the Commissioner has. I believe it would be better to focus on prior discipline and other punishments for similar offenses. If the Appellant can prove that others are not punished for similar offenses, then he may still be guilty of the offense, but the punishment would be mitigated. That would give the Police Commissioner an incentive to deal with the problem. Particularly where obscene language is an element of maintaining a workplace hostile to women, this is an issue to which the Commission should be more sympathetic.

SUPERVISION REQUIRED FOR REALLOCATION. RULE 10 4STILL SAFE

It is common to find state workers doing work far above what they were hired to do. This is the usual subject of position reallocation appeals. One of the most import elements of position classification decisions is how many subordinate workers one supervises. Where an Accountant 11 primarily did the work of a Business Management Specialist, a much higher position, but did it by himself, the Commission denied him reallocation, citing the supervision element of the job description in the position to which he aspired.

There were two appeals of Rule 10, gender-based Special Certifications, G-3257, Boorack v. Pembroke and G-3605, Amoroso v. MBTA. Both lost, but I suspect the Commission is out of touch with federal jurisprudence changes in this area.

MORE MOVES FOR THE COMMISSION'S OFFICES IN STORE

According to Mr. Wetzel in his interview in this issue, the Commission is going to move part of its offices (and four of the Commissioners) to the Saltonstall Building. This will put case files in motion between DALA, the new Saltonstall office, and the 21st floor of the McCormick Building office. Even with the best of tracking systems it will be very hard to know where a file is for public inspection, for filing pre-hearing motions, and for requests for subpoenas. Already this is a problem, for there is a wait of several days for looking at files, and documents filed have been lost. It hardly enhances collegiality for the five Commissioners to be divided into two different buildings. It also exacerbates the isolation of the Chairman by not having her closer to the hearing rooms. Her absence from hearings and her second-hand connection to the decisions that bear her signature, I think, will limit her ability to understand the Commission's adjudicatory work or to influence the Commission's jurisprudence.

Massachusetts Merit System Reporter 174

Civil Service Coverage

Is an Employee Covered by

Civil Service Commission

Appeal Rights?

This can be a very complicated question in the abstract, and until you can find the correct statute, it is often impossible to decide. There are provisions of the General Laws dealing variously with civil service, with the creation of state departments, and with the state personnel system, both extending coverage to and excluding from coverage employees. There are also hundreds of special acts and local ordinaces [sic] that exclude or include positions within civil service.

One caveat for practicioners working with a client: most employees know whether they are covered, even if the statutatory authority is very obscure; then it is your problem to find that authority. This list is a starting point. The first pirnicple [sic] is: for municipal positions, cities are generally included, and towns are generally excluded.

There is a difference among civil service coverage for appointments, coverage for appeal rights under Sections 41 - 45, and coverage for classification appeals under Chapter 30. Generally, anyone who takes a civil service examination, whose name is certifitied, [sic] and who is hired as a result of that certification is included for all three purposes. However, there are many other employees who are hired by other procedures who also have appeal rights. There are also issues for employees who hold both types of positions, eg. an employee hired as a Police Officer off of a certification, who is then promoted to be a Detective, which is not a classified position. Such employees enjoy appeal rights if they are discharged, but not if they are demoted back to their original position. Regarding the classification appeals, only state employees have rights, even if they are not certified. Generally, this brings in employees of the state college and universtity [sic] system, who have no other civil service rights.

Finally, there are probationary periods, which the employees must serve before they are tenured. Tenure is in this context a requirement for Civil Service Commission appeal rights, under Sections 41 - 45. The general requirement is in Section 34, six months, except for police officers and fire fighters for whom the period is a year, Sections 61 and 65. Veterans under Chapter 30, Section 9A have a three year probationary period, and there are many five year periods for special groups.

In this issue is a list of all municipal ordinances dealing with civil service coverage issues, particularly local acceptances. In a future issue we hope to publish a list of all special acts dealing with special coverages.

175 Volume 10, Spring, 1997

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The following position titles and employers are generally included:

1. Section 48, first and second paragraphs

2. Other state employees under Chapter 30, Sec. 9B

3. State employee veterans in unclassified positions, Chapter 30, Sec. 9A

4. Municipal employee veterans, Chapter 41, Sec. 112A.

5. Public Housing authorities, Chapter 121B, Se. 29.

6. Urban renewal agencies, Chapter 121B, Sec. 52.

7. Milk inspectors, Chapter 94, Sec. 33.

8. Department of Mental Health institutional school teachers, Chapter 30, Sec. 9D.

9. Appointed municipal officers, Chapter 41, Sec. 127.

10. MBTA Police, Acts of 1968, Chapter 664, Sec. 1, and Acts of 1976, Chapter 829, Sec. 1.

11. Union, blue-collar employees of the Suffolk County Sheriff, Acts of 1960, Chapter 135.

12. Other special acts.

The following positions are excluded:

1. Section 48, third paragraph

2. Aged Police Officers, Chapter 30, Sec. 90.

3. Veterans under Chapter 30, Sec. 9A who serves in a high-level executive position, Hanley v. Commissioner of Insurance, 355 Mass. 784, 243 N.E. 2d 917 (1969).

4. Veterans under Chapter 30, Sec. 9A for which another statutory procedure exists for removal, Dwyer v. Commissioner of Insurance, 375 Mass. 227, 376 N.E. 2d 826 (1978).

5. Other special acts.

Massachusetts Merit System Reporter 176

Key to D igests

Research

Digest Headings

Appointments

These cases concern the unique aspects of civil service hiring, after examinations. Applicants who are not selected, where a person of lower score is

appointed instead, can appeal either on the basis of non-selection, or in cities under certain anti-discrimination court decrees, on the basis of the reasons given for bypass. In the former case, the appointing

authority usually gives positive reasons about the persons selected. In the latter case, the reasons must be negative about the person bypassed. In either

case the reasons must be approved by the state Personnel Administrator, and his approval can give rise to an appeal under Section 2(b). There are many

other discretionary actions of the Personnel Administrator involving lists and selection that can be appealed to the Commission.

Bypass, General

Certification

Eligible Lists

Examinations

Medical Examinations

Provisional Appointment

Selection

Seniority

Training & Experience Score

Veteran's Status

Classification

State positions are "classified" by the difficulty of their duties, the extent of their responsibility of the incumbent, and other factors. This classification allows the positions to be coordinated with other positions for purposes of examination and promotion. Appeals arise under G.L. Ch.30, Sec.49 when an incumbent alleges that the duties that he performs exceed those of the position in which he is employed. For example, a Clerk 11 claims that because of the complexity of her job it is better classified as a Clerk III position. If the A ppellant wins this appeal, lie will get the higher pay of this higher position. Municipal employees also have classification plans, but there is no appeal to the Civil Service Commission, except when the creation of a new position title is proposed, Sec.5(a ). The major headings are the job Series. Listed here are the ones in this issue only.

Business Management Specialist

Program Coordinator

Storekeeper

INFORMATION ON ORDERING

order the full text of the decisions, including Magistrates, reports, by sending two dollars for each number ordered. Current subscribers can order over the telephone. Documents will be sent via U.S. mail or fax.

Massachusetts Merit System Reporter

30 Edgerly Road, Suite 2, Boston, Mass. 02115

Tel. (617) 266-6029. Fax (617) 242-8284

Massachusetts Merit System Reporter 178

Adversary Actions

These digests include cases brought under Section 43 where the decision concerned the issue of just cause. This category comprises of discharges, suspensions, punishment duty, layoffs, abolition of position, and transfers.

Abolition and Layoff

Arrest Procedure

Attendance

Conflict of Interest

Discourtesy

False Information

Institutionalized Persons

Insubordination

Intoxication

Negligence, Carelessness

Neglect of Duty

Off Duty Misconduct

Personal Appearance

Safety

Stealing

Supervision

Unbecoming Conduct

Violence

Procedure

This section contains digests of decisions concerning the Civil Service statutes and rules, as they pertain to the procedure before the Commission itself, and the procedures under Section 41, other than just cause. Motions to dismiss, Section 42 appeals, and decisions concerning subpoenas, discovery, hearing procedures, and motions before the Commission are digested here.

Appointing Authority's Hearing

Arbitration

Delays

Enforcement of Decisions

Evidence

Investigations

Layoff

Modification of Penalty

Mootness

Personal Jurisdiction

Hearing Procedure

Reconsideration

Reinstatement

(formerly Reinstatement Order)

Reconsideration

Request for Hearing

Resignation

Subject Matter Jurisdiction

Suppoena [sic]

Tenure

179 Volume 10, Spring, 1997

0 0

Decisions

From the Civil Service Commission, February 1 to April 30, 1997.

Appointments

BYPASS, GENERAL

Residency, Lack of Documentary Evidence: The Appellant "failed to supply any documented evidence to meet the burden of proof of residency in the City of Boston 12 months prior to taking the civil service examination for Police Officer." The Commission upheld the bypass of the Appellant for non-residency. G-3455, Forest v. Boston Police Dept., Feb. 27, 1997. James M. Fox (Appellant), Elizabeth Audet (Dept.)

Removal from Certification, Concealing Identity: "We believe that the Appellant has been obscuring his true identity in order to conceal criminal activity and misrepresented himself on numerous occasions. On October 21, 1993 he peti - tioned the federal court to have his name changed.... On this certificate the Appellant listed his date of birth as June 10, 1968, but on his certification of naturalization he lists June 10, 1974, as his date of birth. He never sought to make corrections. The Appellant has utilized several aliases and different dates of birth in order to obscure criminal activity, claiming that his brother was the individual responsible for committing those offenses." The Commission upheld removing the Appellant's name from the certification. G3440, Duong v. Boston Police Dept., Mar. 4, 1997. Paul Seaver (Appellant), Joanne 1, . Belasco (Dept.)

Carrying Concealed Weapon, Old Conviction: The Appellant bad been arrested in 1979 for carrying a weapon in his car. The loaded gun had been in plain view on the front seat of his car. At his hearing lie told inconsistent stories about why he had a gun with him that night. His carrying of this gun was related to a domestic dispute that night, and as such new federal law would bar him from carrying a gun as a Police Officer. For the second time the Commission upheld the Administrator's decision in accepting this reason for by-passing the Appellant. G2893, Brown v. Boston Police Dept., March 10, 1997. Nicholas Roussos, Kevin Tivnan, Eric Wetzel (Presiding), Galen Gilbert (Appellant), Susan Prosnitz (Dept.) This case was appealed to Superior Court and remanded. I ill's second decision has also been appealed.

No Reasons Given, Subsequent Appointment, Tenure Date: The Appellant was by-passed, but later appointed to the position of Police Lieutenant. To enhance his seniority, he appealed the earlier by-pass, which the City did not care to defend. By winning he hoped to be eligible to take an upcoming Captain's examination which required that he have a year's service as a Lieutenant. He could meet that requirement only by counting the earlier date for his appointment. The Commission allowed the appeal. G-2538, Moynihan v. Springfield Police Dept., April 8, 1997. Joan

Freiman Fink (Magistrate),

William J. Fennell (Appellant), Salvatore Anzalotti (City).

Retroactive Adjustment of Seniority Date: The Appellant was hired as a Fire Fighter. To compensate for an earlier improper bypass, the Commission gave the Appellant an earlier seniority date. G-3585, Bayles v. Quincy Fire Dept., Apr. 18, 1997, Steven P. Baylis (pro se), Kevin J. Madden (Dept.)

Psychological Examination, Anger, Resentfulness: "The Appellant took the psychological examination that was administered to all candidates for Boston Police Officer. He failed to pass this test. The results of the test show that the Appellant, according to Dr. Guy 0. Seymour, Psychologist for the Boston police Department, 'has a high degree of internal anger and resentfulness.' Further, Dr. Edward S. Schwartzreich, Consulting Psychiatrist for the Boston Police Department, performed a second level interview on the Appellant and he 'strongly suspects a learning disability/auditory processing deficit.' There is [a] serious doubt that the Appellant could withstand the rigors of police academy studies and successfully perform the duties of a Police Officer. The Appellant, in an independent psychological assessment by Dr. Gerald L. Borofsky, Psychologist, found that he has 'no serious psychological disorder.' We believe that the preponderance of evidence proves in this case, that the Appointing authority has sound and sufficient reason to bypass the Appellant for

Police Officer in the Boston Police Department." G-3467, Taylor v. Boston Police Dept., April 25, 1997. Michael D. Powers (Appellant), Elizabeth J. Audet (Dept.)

Better Training, Better Interview, More Discipline: The Appellant applied to be promoted to be a Police Sergeant. He was bypassed by someone who had pursued more training opportunities, he answered the interview questions better, and he had no discipline record unlike the Appellant. The Commission upheld this bypass. G-3203, McClusky v. Waltham Police Dept. April 15, 1997. Sarah H. Luick (Magistrate), Brian F. Gilligan (Appellant), Robert F. Pilicy (City).

BY-PASS, MEDICAL

Psychiatry Problems, Overcontrolled Hostililty: The Appellant's psychologicist, John J. Barry, Ph.D. "concluded that the Appellant's personal profile was 'within normal limits' and [that the Appellant] was emotionally stable and fit to become a Boston Police Officer." The Department employed psychiatist [sic] Edward S. Schwartzreich, M.D. and psychologists Guy 0. Seymour, Ph.D. "who both believed that the Appellant 'was too dependent and/or had a history of substance abuse.' His dependencey [sic] raises concerns about the ability of the Appellant to tolerate stress, and also, the increased consumption of alcholol [sic] to deal with problems of stress. Further, in their opinions the Appellant has a 'high degree of scale on the MMPI2, and a withdrawn, non-introspective personality', and both have found the Appellant to be 'not acceptable,' for the position of Boston Police Officer." The Commission upheld the Administrator's decsion [sic] to accept these reasons for by-pass. G-3434, Feeney v. Boston Police Dept., March 25, 1997. Douglas Louison (Appellant), Elizabeth J. Audet (Dept.)

SELECTION

Education and Employment Background: The Appellant applied to be a Police Officer. Ten other candidates were appointed ahead of him. "Three of the chosen candidates were trained at the police academy; many had college degrees in Criminal justice; seven of the ten had work experience with either school or municipal law enforcement agencies; and a few of them had military experience. They have education and employment backgrounds that were more conducive to the job responsibilities and duties of a Police Officer." The Commission upheld the acceptance of these reasons for selection. G-3405, Adams v. Billerica Police Dept. Feb. 12, 1997. Frank McGee (Appellant), Lisa Sinclair (Town).

Special Certifications, Gender Based List: The Appellant applied to be a Police Officer. The Town requested and received a Gender Based Special Certification in addition to the Regular Certification. The Appellant was in the sixth place on the regular certification. The Town made one appointment from the Special Certification * Even if two more appointments had been made the Appellant would not have been reached, under Rule 10. The Commission upheld the use of the Gender Based List. G-3257, Boorack v. Pembroke, Feb. 18, 1997. Frank McGee (Appellant), Sandra Charton (Town).

Job Performance and Productivity Records, Bias of Interviewers: The Appellant applied to be an Environmental Police Officer. The Department appointed three others who "all had superior on-the-job performance and productivity records." The fact that the sixmember selection panel had members who knew all of the appointed candidates through past employment supervision, but none of whom had ever supervised the appellant, caused the Commission

to recommend that this "oversight ... be addressed in future selection of those serving on such interview panels." The Commission upheld the selection and denied the appeal. G-3160, Joaquim v. Dept. of Fisheries, Wildlife and Environmental Law Enforcement, Feb. 20, 1997. Stephen C. Pfaff (Appellant), Priscilla E. Geigis (Dept.)

Education, Communication Skills: The Town appointed three people as police officers. One had experience as a security officer and possessed "communication skills." Another had a Bachelor's degree in criminal justice and possessed "communications skills." The third one had been employed with the Town as an auxiliary police officer. The Appellant who was the highest on the certified list had none of these attributes. The Commission upheld the decsion [sic] of the Administrator in accepting these reasons for appointing. G3242, Berte v. Agawam, March 6, 1997. Eric B. Wetzel (Presiding), S. Thomas Martinelli (Appellant), Thomas S. Locke (Town).

Prior Police Officer Experience, EMT status, Good Recommendations: The Town appointed a Police Officer who had a higher score, but lower ranking on the certification due to non-residency. The appointed person was already a special police officer, he had been trained at the M.C.J.T.C. Academy, he was an EMT, and he was highly recommended by another police chief, attributes not shared by the Appellant. The Commission upheld the Administrator in accepting these reasons for appointment. G-2904, Majienski V. Manchester, April 10, 1997. Jaye A. Whittier (Magistrate), Donn, DeSimone Buckley (Appellant), Philip Collins (Town).

More Command Experience, Better Interview, Widespread Respect: The Appellant applied to be a Police Captain, a position he had

held for a year and a half until he was demoted because of a lack of money in the budget. When the position was open again he was bypassed. The Chief said the other candidate, who was selected, performed better in the interview than the Appellant, but on cross examination the Chief could remember very little about the interviews. The Chief said that part of the duties of the selected applicant was supervising the Records Division. However, on cross examination the Chief admitted that this supervision was t is Lieutenant's only major responsibility for several years, that this Division was very small, and that when this Lieutenant had relinquished this responsibility it had been taken over by a Sergeant who had other duties as we It. The Chief claimed that his chosen candidate commanded the respect of the entire Department. However, the Commission held this was impossible to prove. The Commission overruled this bypass and ordered that the appellant be listed first on the next certification. G3213, DiVincenzo v. Beverly, April IS, 1997. Kimberly A. Fletcher (Magistrate), Galen Gilbert (Appellant), Robert A. Munroe (City), William M. Appeal (Administrator).

Classification

BUSINESS MANAGEMENT SPECIALIST

Lack of Subordinates: The Appellant was an Accountant 11. Although he may have done many of the particulars of a Business management Specialist, since lie did it without supervisi ng anyone, he could not be reallocated. Supervision was part of the job description. The Commission denied the appeal. C-2149, Turnbull v. Dept of Education, April 10, 1997. Bruce R. Turnbull (pro se), Jane A. Joyce (Dept.)

PROGRAM COORDINATOR

Field Reviewing, Direct Input into Railroad Crossings Program: The Appellant was a Program Coordinator 1, seeking an upgrade to Program Coordinator 111. The Commission found evidence that he was doing level 11 work: "The Appellant is required to spend approximately twenty percent of his time in the field reviewing and having direct input into the railroad crossing program currently being conducted by the Massachusetts Highway Department" However' this was not enough to warrant an upgrading to level 111, and the Commission affirmed the decision of the Personnel Administrator. C-21 11, Widdison v. Mass. Highway Dept., April 10, 1997. Jon R. Widdison (pro se), John Senchyshyn (Dept.)

STOREKEEPER

Added Duties and Responsibilities: The Appellant was a Storekeeper II, who wanted his position to be reclassified to Storekeeper 111. An in-house audit of his classification supported this upgrading, but the institution refused to follow this recommendation. The Commission found that "the duties performed by the Appellant were of a scope and nature to warrant class fication to Storekeeper 111. Because of recent organizational reforms that "may have lessened [the] Appellant's duties as [he is] presently charged to perform", the Commission ordered that the position be lowered again when it becomes vacant. C-2090, Hun newill v. Framingham State College, Mar. 3, 1997. Gene Booth (Appellant), Joseph P. Lopes (College).

Adverse Actions

ABOLITION AND LAYOFF

Bad Faith Abolition, Isolating One

Position: The Appellant, a twenty

three year plumber for the City, was laid off when his position was abolished and his work contracted out. The Commission found that the City had studied the plumber's position only, in a cost and benefit analysis, upon which the decision was made. The Commission also found that the City was retaliating against the Appellant, who had just won a large arbitration award against the City. Since the justification for the layoff, a singular cost and benefit analysis, was applied only to the Appellant, the Commission overruled this abolition of his position. D-5569, Thibault v. Fall River, Mar. 4, 1997. Joan Freiman Fink (Magistrate), Wayne Soini (Appellant), Mary O'Neil (City).

ATTENDANCE

Excessive Absences, Lack of Explanation for an Absence: The Appellant was often absent immediately before or immediately after days off. He was out 65 days in five years. The Appellant had been heard to say that he considered sick leave his to use as he saw fit, regardless of the Department's polIcy which limited the use of sick leave to covering illness or injury. The Commission upheld a two-day suspension. D-5412, Duerr v. Methuen, Feb. 20, 1997. Jaye A. Whittier (Magistrate), Harold Lichten (Appellant), Maurice J. Lariviere (Town).

Tardiness at Roll Call: The Appellant was a Correction Officer. He "Was late three times in one month. He received a verbal warning. He was late two more times over the next few months and received a formal written warning. He was then late twice more in less than a threemonth period. As such, he received a one day suspension. In imposing the supension, [sic] the Department of Correction correctly invoked the doctrine of progressive discipline." The Commission upheld a one-day

suspension. D-5326, Shaughnessy vs. Dept. of Correction, March 6, 1997. Judithann Ojerholm (Magistrate), Daniel J. O'Neil (Appellant), Jeffrey S. Bolger (Dept.)

Leaving Assigned Work Site before End of Shift: The Appellant was a Police Officer assigned to work at a Dominican Festival in the City of Boston. He reported to duty at the beginning of his shift, went to his assigned post, and left an hour later. His evidence that he was present until the end of his shift, but that his radio malfunctioned so he could not hear himself being paged, was unbelievable. D-5617, Latson v. Boston Police Dept., April 15, 1997. Judithann Ojerholm (Magistrate), Susan F Horwitz (Appellant), Susan M. Prosnitz (Dept.)

Last Chance Agreement, Abysmal Attendance Record: The Appellant was a laborer who was drug and alcohol dependent. Because of misconduct and poor attendance he entered into a last chance agreement, part of which was that he was subject to random drug and alcohol tests. He failed to attend one such test. He was also untimely in providing certification that he had completed a course of drug counseling, as required by his agreement. The Commission upheld his discharge. D-5482, Mace v. Chelsea, April 3, 1997. Kimberly A. Fletcher (Magistrate), Richard 1. Clayman (Appellant), John M. Carey (City).

CONFLICT OF INTEREST

Arresting Someone who had Bothered a Friend: The Appellant was an off-duty Police Officer. He went with his fiance' to pick up her son at a skating rink. This son told him that a youth who was black and who was named Donald had threatened him. Later the Appellant saw a black youth walking, whom he thought was Donald. The Appellant confronted the

youth, who became beligerent. [sic] The Appellant, still off-duty, drew his gun, and called for assistance. The assistance came and arrested the youth, who was not Donald. The Commission upheld a six-day suspension for the Appellant involving himself in a situation with family members, and for lying in his report. D-5597, Condon v. Springfield Police Dept., March 13, 1997. Keven B. Coyle (Appellant), Pamela Nolan Young (Dept.)

DISCOURTESY

Obscene Language on the Telephone, Frustration: The Appellant was off-duty and he needed the home telephone number of another Police Officer. He called the station, where there was a policy of not giving out home numbers of Police Officers unless the inquirer was known and recognized by the Officer answering the call. The Appellant had trouble getting anyone to admit that they knew him, and he expressed his frustration in rude and obscene language. Immediately thereafter, the sergeant who was the object of this comment called him back to express his outrage. The fact that he could not identify the Appellant to help him, but had no trouble calling him at home, was deemed mitigating. The Commission found that there was a culture of coarse language in the Boston Police Department, and that it was unfair to punish the Appellant for this language. D-4895, Lawler v. Boston Police Dept. Mar. 4, 1997. Sarah H. Luick (Magistrate), Alan H. Shapiro (Appellant), Susan Posnitz (Dept.)

Angry Outburst when Asked for Something: The Appellant was Superintendent of the Gloucester Housing Authority. Another official of that agency asked him for some blueprints, which were in his possession. When the other official came to his office two days lat

er to renew her request he exploded in anger, yelled obscenities at her and stormed out. The Commission upheld a five-day suspension. D5164, Randazza v. Gloucester Housing Authority, March 5, 1997. Jaye A. Whittier (Magistrate), Alan H. Shapiro (Appellant), Mary John Boylan (Authority).

INSTITUTIONALIZED PERSONS

Smuggling Contraband: The Appelant was a prison guard. An inmate in his custody was found with a gold-colored chain and cross, which he was forbidden to have. To comply with the prison rule, the inmate mailed the article out of the prison. He mailed it to the home of the Appellant's girlfriend's mother. A few weeks later the inmate was found with the same article in his possessession. [sic] The Appellant had been suspended three times before for tardiness. The Commission upheld a sixmonth suspension. D-5534, Buchannan v. Dept. of Corr. March 6, 1997. Kimberly A. Fletcher (Magistrate), Daniel J. O'Neil (Appellant), Robert J. Schilling (Dept.)

INSUBORDINATION

Resisting Reassignment, Belligerence, Cursing: A Sergeant ordered the Appellant to work in a police car instead of at a desk. The Appellant objected to this reassignment and in very rude language he refused. He put his hands up in a aggressive posture, he refused to stand at attention when ordered to do so, he refused to write a report on his actions, and he refused to leave the station. The Commission upheld a five-day suspension. D5587, Curtis v. Boston Police Dept., Feb. 20, 1997. Maria A. Imparato (Magistrate), Joseph G. Sandulli (Appellant), Joanne L. Belasco (Dept.)

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NEGLECT OF DUTY

Failure to Accept Statements of Witnesses at an Accident: The Appellant, a Police Officer, arrived at the scene of an automobile accident. Several people volunteered information about what they had seen. He curtly and rudely told them he was not interested, and he neglected to take the names of witnesses, even when their stories contradicted his report. The Commission upheld a five day suspension. D5588, O'Malley v. Boston Police Dept., March 13, 1997. Susan F. Horwitz (Appellant), Joanne L. Bolasco (Dept.)

NEGLIGENCE, CARELESSNESS

Improperly Using Construction Vehicles: The Appellant was a Highway Maintenance Craftsman. His foreman told him to park a plow truck in a place out of the way because the wing-plow was broken. The Appellant parked the truck near other vehicles, an e failed to secure the upright plow with a chain. A few days later it came crashing down on another vehicle. On another occasion the Appellant drove a frontloading tractor high up a steep pile of sand until the wheels spun. This was dangerous because the engine fluids could drain away, and the tractor could overturn. At another time the he drove a truck with a broken center bolt; he should have called the garage for a mechanic, because this condition could cause the springs to rub against the tires and the brake hardware. Finally, at one time he was using a frontloading tractor to move heavy concrete blocks. In doing so, he had the bucket tipped up at an angle so the canvas straps, from which the load was dangling, were bent over the front blade of the bucket. This was dangerous because the straps could be cut by the blade and the load would fall down. However no one had ever explained this to the Appellant. The Commission

found just cause in the first three incidents to uphold the Appellant's discharge. D-5517, Markham v. Pittsfield Dept. of Public Works, April 3, 1997. Judithann OjerI I (Magistrate), Wayne Soini noun (Appellant), Kathleen Alexander (Dept.)

OFF DUTY MISCONDUCT

interfering with Crime Investigation: The Appellant was a Police Officer, off-duty when she was near the scene of a stabbing, involving people she knew. She went to the police, but did not tell them all that she knew about the crime. When she later found the knife used in the stabbing, instead of calling the Police Department, she went to the hospital where the victim was and gave it to a nurse to put in the hospital evidence locker. The Commission upheld a thirty day suspension. D-5513, Correa v. Boston Police Dept., April 3, 1997. Sarah H. Luick (Magistrate), Christoperh J. Muse (Appellant), Abbe L. Ross (Dept.)

Procedure

APPOINTING AUTHORITY'S HEARING

Failure to Issue Decision, Evidence of Events after Appeal: The Appellant was suspended for one day. Despite the failure of the Department's notice to contain the required reminder of his right to request a hearing, he asked for a hearing before the Appointing Authority, and the hearing was scheduled. Before it could occur the Appellant appealed to the Civil Service Commission, under Section 42. The Appointing Authority had not held a hearing before the appeal was filed, although one was scheduled for a later date. The Commission found that the Department never held a hearing nor issued a decision, based on evidence of events after

the appeal was filed. There was no specific evidence that the Appellant's rights were prejudiced, but nonetheless the Commission held that there was prejudice from the Department's failure to issue a decision. The Commission reversed the suspension. D-5202, Montero v. Dept. of Revenue, Feb. 21, 1997. Sarah H. Luick (Magistrate), Stephen M. Hughes (Appellant), Patricia G. Noone (Dept.)

ARBITRATION

Election to Arbitrate: The Appellant had elected arbitration. The Commission dismissed his appeal. G-3624, Switzer v. Somerville, March 6, 1997. Bertram Sitzer (prose), Michael Capuano, Mayor.

DELAYS

Delay in Background investigation, Re-Certif i cation: The applicant was by-passed because, through no fault of his own, his background investigation was not completed in time. The City, which wanted to appoint him, asked the Commission to put the applicant's name first on the next certification. The Commission allowed this relief under Ch.310, Acts of 1993, 10 MMSR 99. G-3561, In re Rebeiro (Sub nom Tieney [sic] v. New Bedford), April 10, 1997.

EVIDENCE

Lack of Documents, Veteran's Preferance: [sic] The Appellant sought to overrule the Personnel Adminstrator for not giving him credit for minority or veteran status on the 1990 Police Officer civil service examination. At the hearing he did not have a copy of his application to prove that lie had claimed preference at the time of the examination. The Personnel Administrator had routinely destroyed all the records relevant to this appeal. The appeal was denied for lack of any documento

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ry evidence. G-3416, Lewis v. Boston Police Dept. March 14, 1997. Michael Conley (Appellant), Elizabeth Audet (Dept.)

Inability to Understand Psychological Evidence, Burden of Proof: The Police Department was unable to understand certain psychological evidence it had in considering the Appellant for appointment. Erring on the side of caution it bypassed him, ignoring a good work record as a Correction Officer. The Commission overruled the Department, and ordered the Appellant's name re-certified. A-675, Kilmartin v. Lowell Police Dept., April 4, 1997. Daniel J. Moynihan, Jr. (Appellant), Edward L. Morris, Jr. (City).

HEARING PROCEDURE

Failure to Have a Commissioner Presiding: Under Section 2(b), 10 MMSR 99, the parties jointly requested that a Civil Service Commissioner or Commissioners be appointed to hear the appeal. The Commission refused, the case was heard by a DALA Magistrate alone, and the Commission did not hear any evidence first hand. On the basis of the Magistrate's findings, the Commission ruled for the Appellant. G-3213, DiVincenzo v. Beverly, April 15, 1997. Kimberly A. Fletcher (Magistrate), Galen Gilbert (Appellant), Robert A. Munroe (City), William M. Appeal (Administrator). The City has appealed this decision to Essex Superior Court, #97-0914.

PERSONAL JURISDICTION

Failure to Specify Violations in Section 42 Appeal Letter: The Appellant at a Section 42 hearing claimed that he did not receive copies of statutes, and that he never received notice of the time and place of the Appointing Authority hearing. Although he never made these claims in his letter to the Commission claiming an appeal under Section 42, he was allowed to raise these claims at his Section 42 hearing. D-5202, Montero v. Dept. of Revenue, Feb. 21, 1997. Sarah H. Luick (Magistrate), Stephen M. Hughes (Appellant), Patricia G. Noone (Dept.)

Right to Appeal the Appointment of Someone with a Tied Score: The Appellant and the person appointed both had the same numerical score. H.R.D. argued that "All individuals with a tied score are considered to have equal status and are interchangeable within that group." The Commission held that he was not by-passed, when he was not appointed. G3465, Ricci v. Quincy Fire Dept. April 17, 1997.

REINSTATEMENT [formerly REINSTATEMENT ORDER]

Back Pay, Suspension Under Indictment: The Appellant was suspended and discharged under M.G.L. ch.268A, 525, 10 MMSR 145. When his conviction was overturned on appeal, he was reinstated. The Commission ordered that he be paid for all the time he was out, which was five years. D

5458, Kelley v. Boston Police Dept., Feb. 20, 1997. Christopher J. Muse (Appellant), Susan M. Prosnitz (Dept.)

SUBJECT MATTER JURISDICTION

Oral Panel Interview Component: The Appellant applied to be Police Chief. D.P.A. approved the Town's request that thirty percent of the examination be based on an oral interview. The Appellant claimed that this oral interview component should not have been counted. The Town and the Personnel Administrator moved to dismiss, claiming that appeals of examinations must be brought under Section 24, 10 MMSR 109, and that that section does not allow for review of oral panel examinations. The Commission allowed the motion to dismiss. G-3185, Symes v. Weymouth, Feb. 6, 1997. Joan Freiman Fink (Magistrate), Frank McGee (Appellant), Joseph Emerson (Town), William Appel (Administrator).

Commission Refuses to Hear Evidence, PAR 10 Certification: The Appellant claimed that special certifications of women and minority diluted his chances of being appointed. He claimed this violated his rights under the Fourteenth Amendment. The Commission dismissed this appeal "for lack of jurisdiction." G-3605, Amoroso v. MBTA Police Dept., April 28, 1997. Thomas Nee (Presiding), Joseph Amoroso (pro se), William Appel (Administrator), John A. Martino (MBTA).

INFORMATION ON ORDERING

Order the full text of the decisions, including Magistrates' reports, by sending two dollars for each number ordered. Current subscribers can order over the telephone. Documents will be sent via U.S. mail or fax.

Massachusetts Merit System Reporter

30 Edgerly Road, Suite 2, Boston, Mass. 02115

Tel. (617) 266-6029. Fax (617) 242-8284

Text of 1997

Amendments

to Chapter 31, and Other Acts Pertaining to Civil Service

Acts of 1996, Ch. 460 (S.B. 2451), WATERTOWN ARSENAL DEVELOPMENT CORPORATION - EXEMPTION

SECTION 4: ... Neither chapter thirty-one of the General Laws nor any rule made thereunder shall apply to any person employed or engaged by the corporation under this act...

[Approved January 6, 19971

Acts of 1996, Ch. 487 (H.B. 6399) BROOKLINE, TOWN OF-DEPARTMENT OF PUBLIC WORKS-TRANSPORTATION DIVISION-EXEMPTION

SECTION 3: ... The director shall not be subject to civil service law and rules.

[Approved January 9, 1997]

Acts of 1997, Ch. 10, SUPPLEMENTAL APPROPRIATION - PENDING CASES - BACKLOG REDUCTION

SECTION 2: ....

Division of Human Resources,

1750-0105 For a one-time reserve to reduce or eliminate the backlog of cases pending before the civil service commission, provided, that no state employee shall be compensated from this item; provided further, that all costs charged to this item shall be deemed to be one-time costs and shall cease to be obligations of said civil service commission or the commonwealth once such backlog is eliminated; and provided further that notwithstanding the provisions of any general or special law to the contrary, this appropriation shall not expire until June 30, 1998 ... $500,000.

[Approved May 12, 1997]

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