Publications: Massachusetts Merit System Reporter: Volume 10, issue 2: pages 164-169

Interview

with Eric Wetzel

This is an Interview of Eric Wetzel, General Counsel to the Civil Service Commission conducted by Galen Gilbert, MMSR Editor, on May 9, 1997. Mr. Wetzel grew up in rural Pennsylvania, graduated front Clark University it, Worcester in 1971, graduated front New England School of Law in 1986 (nights), and passed the bar that year. He worked for the House Counsel's Office in the Massachusetts legislature, worked in private practice, and was Chief of Staff for the Massachusetts Secretary of Labor.

MMSR: Eric, can you explain the role of stare decisis and Civil Service Commission decisions?

E.W.: Your question is, will the Commission cite its prior decisions as authority? I think they have in a limited way, and maybe they could do more. Where the decisions are appropriate, certainly we'll cite them. There's no sense that the Commission isn't going to follow it's prior decisions.

MMSR: What is the Commission's policy on pre-hearing motion practice? Where the Commission has questionable jurisdiction over a discipline case, can the appointing authority file a motion to dismiss and expect it to be acted upon before the hearing?

E.W.: There's nothing to prevent any party from filing a motion. In any event, where a lot of the disciplinary cases have been assigned to DALA for hearing, they'll make a recommendation on motions for the Commission's action. Whether it's acted upon before the hearing - part of the problem has been that because the Commission is made up of part-time commissioners and only one commissioner being a lawyer - the commissioners are, I guess, cautious in ruling from the bench and would rather have things reviewed. So if there's a delay in ruling on motions, we'll say it's because the commissioners want to make sure it's given the proper review before they act. Do you think that causes problems for the parties in terms of time?

MMSR: Well, essentially, you're saying there is no pre-hearing motion practice. An example is a motion to dismiss. Let's say the parties are from Springfield, the appellant hasn't served his probationary period, the appointing authority files evidence of the appointment date, and the appellant does not object. Do the parties have to come into [165] Boston for a hearing on that discharge?

E.W.: Generically, I'd say they wouldn't, no. It sometimes happens that these things don't get addressed until a pre-hearing conference because it may be that it's the first time that we've had a chance to look at them.

MMSR: So if this is brought up in a pre-hearing conference, it might be dealt with there.

E.W.: Of course, sure.

MMSR: Do all hearings go to a pre-hearing conference before they go to DALA?

E.W.: That's up to DALA. Now, when the Commission refers a case to

DALA it refers the entire file. So it falls under DALA's process if they want to do pre-hearings. It used to be that the Commission would do pre-hearings on some of the cases, but no longer. If the case is referred to DALA, they take it start to finish. If a motion's made that's dispositive of the case, they will send that back to the Commission with the recommendation.

Where the Commission hears the case itself start to finish, certainly the Commission will decide motions. We don't have motion practice like a motion session in the superior court, but we try to deal with the motions timely if we can. And if an issue is fully briefed, I would hope the Commission would take it up without having to inconvenience the parties any further.

MMSR: The next question is about planned legislation. Is there any legislation that the Commission plans to file? You mentioned, before we started recording this, reorganization in the new budget.

E.W.: The reorganization of the Commission to take it out of the line item as part of the human resources division is in the current budget; so the Commission will have it's own appropriation. For the next fiscal year, I'm not aware of anything that the Commission intends to file, dealing with any matters of policy.

There was an item in last year's budget at the request of the joint committee set up under the public service chairs, Representative Menard and Senator Marian Walsh, that mandated a study of the civil service process which included, not only the Commission, but also the H.R.D. - a kind of a blue ribbon panel. Chairman Morris participated through last fall into the early part of this year. You've seen the report that was generated by that committee?

MMSR: I saw the preliminary report [10 MMSR 19].

E.W.: Whether that's going to lead to legislation we don't know, but I think [166] that the Commission Chairman views her role as quasi judicial and isn't going to get involved in any kind of policy - making legislature.

MMSR: Concerning the Commission budget, what is the current budget and what will you be asking for in the future?

E.W.: The current budget for this fiscal year is four hundred eleven thousand dollars and change. That is way up from the last four or five years, when the budget had been about two hundred twenty five to two hundred fifty thousand dollars.

So the Chairman, Christine Morris. was able to get a commitment from the administration to fund the Commission a little more when she came in. We're hoping for a little higher budget next fiscal year. And a direct offshoot, I think, of the Walsh and Menard Commission Study that was done last winter, is the supplemental budget, where there's an item funding the Commission for five hundred thousand dollars for elimination of the backlog. That's currently on the Governor's desk.

If the Governor signs that piece, the Commission will get a five hundred thousand dollars one-time appropriation for the express purpose of eliminating the backlog which has grown over the course of the last four or five years to the tune of about, in round numbers, 1,900 cases.

MMSR: What is the status of the hearing backlog with the Commission? What is the it status of the decision backlog? What system do you have for monitoring DALA?

E.W.: The count when we came on board back in September of the case backlog was about nineteen hundred. I think it's down now to some where around fifteen or sixteen hundred. And if we get this budget, the goal will be to eliminate the backlog in two years. The backlog consists of cases generally three to four years old, but some, as old as nine or ten years, which I don't think anybody would agree is fair.

MMSR: How about the cases that have been heard already, is there a backlog in decision making, or are those all current?

E.W.: You mean since Ms. Morris has been appointed as chair?

MMSR: Well, do you have any that have been heard from before then that are just waiting for a decision?

E.W.: Well, sure. Of the sixteen hundred or so, most have had hearings and are waiting for decisions or have had some form of hearing and need further hearing before they can be ready for decisions. I can give you an example: A commissioner heard a case three or four or five years ago and nothing ever happened after that. The problem [167] with some of these cases, is that there are no findings in the file from the commissioner that heard the case. If the decision is going to turn on the credibility of a witness, we have a problem because a current Commission who didn't see the witnesses obviously cannot rule on the credibility of a witness, so are we either going to rehear those or are going to get agreements from the parties to have the current Commission make findings on what's there.

MMSR: What system do you have for monitoring DALA?

E.W.: Well, the system is limited. We know what goes over there and we get their recommendation when they're complete. If the supple mental goes through, we're hoping to put a more sophisticated track ing system on board so we'll be able to get a better handle on cases at the different stages, both the ones that we have here and the ones that are with DALA, so that we'll be able to go in and see where any given case is in the process.

MMSR: So you have no way of knowing if DALA is taking too long to decide a case?

E.W.: Well, too long is kind of a subjective standard, I guess. I haven't heard any overwhelming complaints from the commissioners that DALA is not doing a decent job.

MMSR: Concerning hearing officers. What hearing officer resources do you have available? Will you be hiring contract officers to hear cases?

E.W.: Well, that's all part of the supplemental budget. If we get the supplemental, then the notion would be that we can hire some hearings officers to attack the backlog; that's the intent of the legislation. That would then free up the current resources, hopefully, for the cur rent cases.

MMSR: Who do you have on the Commission who is holding hearings?

E.W.: As you know, three of the five Commissioners are part-time, with a new Commissioner beginning this month of May. They all partici pate in hearings depending on their schedules. I conduct hearings as need as does Tom Nee and John Tobin, a part-time lawyer working primarily on the backlog. With the supplemental budget, the Commission can hire hearings officers to address the backlog, which will free up the Commissioners to work on the current cases.

MMSR: As a result of the rule hearing, on September 20th, 1995, do you know what the status is of the Commission's emergency proposal to restrict appeals? Is that dead? [168]

E.W.: I think so. My view of the current Commission is that they're not looking to restrict people from filing appeals here.

MMSR: Let's look at conference calls and remote hearings. How can a party obtain a local hearing outside of Boston? Will the Commission initiate conference telephone calls in lieu of motion arguments and scheduling conferences in Boston?

E.W.: On cases where I've been involved, I have been amenable to doing conference calls with people from outside of town. Other commissioners who have direct responsibility for cases - some do, some don't. It's up to the Commissioner.

I agree with the intent of your question in that it's not practical to have people trotting all the way in here to do a pre-hearing if it can be accomplished over the telephone. I think we're getting better at that. It's all kind of coming together as we're gearing up, and if the "supp" comes in and we've got this additional staffing, I think it's going to fall into place and things are just going to get more efficient.

As far as holding hearings outside of Boston, it makes a lot of sense. When you have a group of cases, even if they're unrelated - with a Worcester appointing authority or a New Bedford appointing authority or Pittsfield, you name it, why not take the Commission or some of it out and conduct them on location

MMSR: So are there any plans to do that?

E.W.: The Commission is talking about how they should accomplish it, but certainly, there's a willingness to try it.

MMSR: Does the Commission ever send out proposed decisions or magistrate reports for comments before deciding cases?

E.W.: Not since I've been here, no. It's not the same process as under Chapter 30A, where that's required.

MMSR: Who is doing this now? How fast are records for judicial review being sent out?

E.W.: Well, the driving thing there, again, is the budget. As you know, when money was short, the Attorney General's office took on the task of creating the administrative records for the cases. That has now been re-delegated to the Commission, so we're doing our own. We have one or two of our people who are doing a pretty good job of that.

We try to get an administrative record out through the A.G. within thirty days and often times, we're within two or three weeks.

MMSR: About devolution and representation by the Attorney General: Does the Attorney General consult with the Commission before devolving [169] representation to a party? Is the Commission satisfied with the representation the Attorney General is providing the courts?

E.W.: Every case that's appealed is assigned to an Assistant Attorney General who checks in with the Commission, and lets us know who's handling the case. It falls to me, generally, to be the liaison with them. And I'll review the files on devolvement. As we discuss it, we are pretty much in agreement of what should happen and I have no dissatisfaction at all with the way things are being handled.

MMSR: So there's no friction over them wanting to devolve it and you wanting to have full representation?

E.W.: There hasn't been, no.

MMSR: New legislation exemptions: Will the Commission take positions on any proposed exemption legislation?

E.W.: I think the Chairman's view on the Commission's role as a quasijudicial agency, is that we shouldn't take an official position on legislation.

MMSR: Last we ask about architecture: Are there any plans to combine the Commission's two offices in one place?

E.W.: As of today, it looks like the Commission is going to get office space in the Saltonstall Building adjacent to DALA for the commissioners and the hearing rooms, and the administrative offices will stay in the McCormack Building on the 21st.

MMSR: Thank you very much, Mr. Wetzel.