In a thoughtful, well-reasoned 11-page decision issued this morning, Massachusetts Superior Court Judge Bruce Henry ordered the Commonwealth’s Human Resources Division to NOT “band” scores on police promotional eligibility lists. Here’s the full decision. Judge Henry agreed with the arguments advanced by Sandulli Grace Attorneys Alan Shapiro and Bryan Decker that HRD must follow the statutory rule-making process before “banding” scores rather than issue them by “whole numbers.” The decision does not inhibit HRD’s ability to issue promotional lists as Judge Henry expressly notes HRD can keep issuing lists under the traditional “whole number” format. This decision represents a significant victory for the merit-based principles that serve as the foundation of the Civil Service system and a victory for the faith that the Boston Police Patrolmen’s Association, Inc. and Massachusetts Coalition of Police placed in this system.
As you may recall, HRD for decades listed promotional candidates in the order of the exam scores of police officers. HRDs rules require the agency to rank scores in order of “whole numbers.” In other words, HRD ranked both 88.4 and 88.1 as an 88. In February, HRD reversed this longstanding practice by announcing it would group scores among ranges, or “bands” of up to seven points as equivalent. Sandulli Grace, PC, on behalf of BPPA, MCOP, and several individual police officers, filed suit.
Injunctions are rarely granted in Massachusetts. Courts only can grant them if the plaintiffs have standing to challenge the practice, the plaintiffs seeking the injunction have a likelihood of success, and if an injunction will serve the public interest. On all points, the Judge sided with our clients. After summarizing the facts of the case, Judge Henry concluded that plaintiffs have “standing” to challenge HRD’s actions and thereby rejected one of the Civil Service Commission’s major arguments. In his finding on standing, the Judge favorably cited the plaintiffs’ contention that banding will allow increased favoritism into promotional decisions:
The plaintiffs also contend that the banded scores will expand the candidate pool, thus increasing the potential that promotions will be based on favoritism and bias, rather than merit… In addition, by creating a promotional system that provides fewer safeguards against favoritism and bias, the Division has potentially violated its duty to the plaintiffs. Accordingly, I am persuaded that the plaintiffs have standing to maintain an action under G. L. c. 231A to challenge the banded promotional eligibility lists.
Turning to “likelihood of success,” The Judge again sided with the BPPA and MCOP in concluding that plaintiffs have a “strong likelihood of success” on our claim that HRD violated its statutory obligation to conduct rulemaking prior to banding scores:
The practice of banding scores represents a significant departure from the way scores have been reported in the past. While the proposed banding will be reported as whole number bands, the scoring is very different than what appears to have been intended by the requirement that scores be reported in whole numbers. The scoring bands are a significant change in the manner of scoring and establishing the eligibility lists and that change should have been put in place using the procedure established by the Legislature for making a significant change in the rules. G.L. c. 31, §4. (emphasis added).
Turning to the issue of “harm,” the Judge found that an injunction will promote the public interest by upholding the integrity of the Civil Service system:
[A] determination of the issues raised by the plaintiffs will promote the public’s interest in guarding against political considerations, favoritism, and bias in governmental hiring and promotion … and ensuring that the system operates on ‘basic merit principles, as defined in G.L. c. 31, § 1, absent properly documented and supported bases for departing from such principles in particular cases. (citation omitted, emphasis added).
With regards to the harm claimed by HRD – that an injunction will delay promotions – the Judge agreed with what we’ve been saying all along – that any delay is caused by HRD. HRD can let municipalities make promotions TODAY by issuing lists with whole number scores:
While the defendants assert that any delay in the implementation of the new scoring method will impact communities which are attempting to fill vacancies on their police forces, I do not so find. There is nothing which prevents the HRD from issuing eligibility lists in the same fashion that it has done so for years.
Finally, the Judge issued his conclusion and order:
For these reasons, I find that a preliminary injunction should enter enjoining the defendants from issuing eligibility lists for the promotion of police officers in score bands rather than in the manner in which it has been doing so until a final resolution of this matter on its merits.
Until a final resolution of this matter on its merits, the defendants are preliminarily enjoined from issuing eligibility lists for promotions of police officers in score bands rather than in the manner in which such score have been reported up to the time of this proposed change.
SO WHERE DO WE GO FROM HERE?
Obviously, this decision affirms of the deeply-held faith that the BPPA and MCOP have long placed in the merit-based principles that form the cornerstone of the Civil Service system. This faith was tested and ridiculed by the arrogance of HRD and the Civil Service Commission’s refusal to hear the case.
It is not 100% clear where this case will go from here. As HRD has repeatedly stated, it is under a statutory obligation to issue lists within 6 months of the taking of the exam, i.e. by April 20. We hope that HRD will abide by Judge Henry’s thorough decision and the law and issue those lists in a timely fashion with scores listed and ranked in WHOLE NUMBERS.
As always, we will keep you posted…