Sandulli Grace Online Weekly Tweets for 2010-02-26

Legislative Committee Hears Strong Police Union Opposition To Governor’s Attack On Civil Service

On Wednesday morning February 24, 2010 the Joint Legislative Committee on State Administration and Regulatory Oversight held a hearing to address the Governor’s improper efforts to stack the Civil Service Commission by eliminating the salary of 3 of the 5 Civil Service Commissioners. The Governor’s plan would completely politicize the Commission by puttng virtually all the power in the chair who is answerable directly to the Governor.

At the hearing there was a tremendous outpouring of opposition to the Governor’s proposal. The hearing room was overflowing with representatives from numerous police organizations clearly leading the opposition to the Governor’s efforts. Tom Nee, President of the Boston Police Patrolmen’s Association testified as did Sandull Grace Attorney Susan Horwitz. See her comments below. Also the Massachusetts Coalition of Police was represented by Vice President Kenneth Scanzio and Attorney Tim King.

The Committee members appeared very concerned with the Governor’s proposal and listened to the objections from the police union witnesses. The Committee members heard that the Civil Service Commission needs some fixing but that the Governor’s proposal is not the appropriate action and in fact will only make things worse. It is wrong to politicize an agency whose primary mission and purpose is to keep politics out of public emloyment. The Civil Service Commission is sometimes the only place where employees can turn to insure fair treatment in their employment. The Committee must act within ten days of the hearing and report whether it approves or disapproves such plan and then at least one branch at the general court must vote it’s disapproval by a majority vote in order to prevent the Governor’s plan from taking effect as of March 27,2010.

Please continue to let the Committee know your opposition to this anti union and anti employee plan.


House Staff:
Room 22
State House
Boston, MA 02133
House Staff Telephone: (617) 722-2140

Senate Staff:

Room 413A
State House
Boston, MA 02133
Senate Staff Telephone: (617) 722-1643

Susan’s statement to the Joint Legislative Committee on State Administration and Regulatory Oversight:

My name is Susan Horwitz and I am an attorney representing the Boston Police Patrolmen’s Association. I also have been representing individuals before the Civil Service Commission for over 25 years and I previously worked for the Federal government as a personnel officer implementing federal civil service law.

I am here today to ask you to disapprove the Governor’s actions to improperly restructure the Civil Service Commission.

The role of the Civil Service Commission as described in the Statute, Chapter 31, is to enforce the basic Merit Principles as described in the law. The agency is responsible for assuring fair treatment of all applicants and employees in all aspects of personnel administration without regard to political affilation and to assure that all employees are protected against coercion for political purposes and are protected from arbitrary and capricious actions.

The State Courts have further emphasized that the fundamental purpose of the civil service system is to guard against political considerations, favoritism, and bias in government employment decisions and to protect public employees from political control.

I believe that if you take a close look at the Governor’s proposal you will see the irony in his proposal since it does not pass the standard of keeping politics and fairness in the structure of the Civil Service Commission itself. Were the Commission reviewing the personnel actions proposed by the Governor’s proposal it would surely find it in violation of merit principles and in contravention of the essence and purpose of the civil service law and system.

The Commission is designed with 5 commissioners and creates balance by ensuring that at least one member is a representative of labor, 2 representing management and also that no more than 3 commissioners can be from the same political party. Clearly this is designed to create balance and fairness and to assure that the Commission will carry out its role as a fair and neutral agency. It is clear that the Commission must not be influenced by politics and surely should not be restructured for political expedience. The proposed restructure will effectively eliminate the labor member of the Commission and will create a one person commission which will be directly responsive to the Governor since the Governor will determine which Commissioners are paid a salary. What had been an agency which has been and must be independent of executive control would now be entirely under executive control. It is essential that the Civil Service Commission be an independent watchdog to assure fairness in public employment. This proposed new structure effectively eliminates the guarantees of balance between labor and management and between political parties.

The purpose of terms of office is to insulate officials from being removed because those that appear before the agency may dislike decisions made by the agency. This new structure would effectively terminate current commissioners just to satisfy the complaints of those who are not willing to work within a fair and unbiased system.

The Governor’s proposal undermines the principles of the civil service system and politicizes an agency whose purpose is to keep politics out of public employment. The civil service commission is the only place where individual citizens can go to ensure fair treatment in their efforts to obtain public employment and to ensure their fair treatment as public employees.

The effort to rush in these changes is further evidence that there are political motivations to this proposaL. It is wrong to try to make these radical changes without proper review and analysis by the legislature. This proposal does not create efficiency in government it merely politicizes an agency which must be independent in order to carry out its mission.

We therefore ask you to disapprove of this dismantling and politicizing of the Civil Service Commission.

Susan F. Horwitz, Esq

Sandull Grace, PC

44 School St Suite 1100

Boston, MA 02109



Like one of those standard joke setups, I have good news and bad news.

First the good news: Human Resources Division (HRD) has dropped banding, at least for now. The Civil Service Commission just issued an email with the announcement of a public hearing on February 25 to review proposed amendments to HRD rules. The rules no longer contain a provision for banding of examination scores.

In reviewing the proposed changes, I actually find some of them improvements. For example, they clarify how to deal with the period when old lists are expiring and being replaced by new ones. If HRD does not receive the certification (“the list”) back from the employer at least three weeks before a list expires, it will not, assuming these rules go through, issue a certification. This creation of a “bright line” separating the two lists removes some of the politicking that has invariably influenced this process.

Now for the bad news. On January 27, Governor Patrick filed legislation that would go a long way towards gutting civil service. The Commission now has, as it has had for decades (at least as long as I’ve been practicing, which goes back to at least the Hoover Administration), five Commissioners: a chairman and four others. Only three of them now receive full salaries, with Commissioner Dan Henderson’s being the lowest of those, at about $77,000.

The Governor has proposed to essentially eliminate Commissioner Henderson, by converting his position from one of a relatively modest salary to one with no salary. Since Henderson presumably does not have a trust fund to fall back on, this would necessitate his leaving this position. Ironically, this change would come following significant criticism from the management labor community (including Boston Police Commissioner Davis and the Mass. Municipal Association) protesting Commissioner Henderson’s repeated insistence on issuing decisions in accordance with the law and not as a rubber-stamp for public employers.

Also in the bill, Commissioner Jack Taylor, who is already reduced to a part-time schedule, would see his salary go from about $35,000 to zero. Coincidentally, Taylor was the only other commissioner, besides Henderson, to vote against allowing banding to go through about a year ago. The other three commissioners, including Chairman Bowman, saw no problem with it. We had to then go to Superior Court to find someone who would actually read the law and force HRD to live with its regulations requiring scores to be set out in “whole numbers.”

What is particularly nefarious about the legislation is that, by the way it was filed, it automatically goes into effect on March 27, unless one branch of the Legislature votes it down before then. A copy of the bill can be found here.

If you still believe that having an independent Civil Service Commission has any value, I cannot urge you strongly enough to contact your union, your legislators, and anyone else who will listen to try to stop this legislation from becoming law.

Had this been done by the Romney Administration it would not have been surprising, but coming from the first Democratic governor in over 15 years, it is shameful.

Alan Shapiro

Boston Globe profiles MCOP court case for full Quinn Bill benefits

The Boston Globe today profiles the efforts of Massachusetts Coalition of Police to obtain full Quinn Bill benefits for members in Mashpee and Wrentham.  Sandulli Grace, PC Partner Bryan Decker is quoted about MCOP litigation to restore full Quinn Bill benefits to police officers.  Some municipalities reduced Quinn Bill benefits after the State reduced its reimbursement to localities.  MCOP argues that any reduction in Quinn Bill benefits is an express violation of M.G.L. 41, s108L.

Read the article in full and then comment on the web site.

Legislatures Restores Benefit For Disabled Public Employees

It is an unfortunate reality of the modern workplace that public employees can and do become permanently disabled simply by doing their job. Police officers and firefighters, in particular, who respond to the call of duty can suddenly find themselves unable to work a job that has been a lifelong passion.

Thankfully, Massachusetts law recognizes the great sacrifice made by these public employees. Chapter 32, Section 7 of Massachusetts General Laws provides Accidental Disability Retirement for persons who sustain a career-ending injury in their work. This statutory safety net provides 72 percent of an employee’s regular compensation. For years, the retirement allowance was based upon compensation earned by the disabled employee on the date of injury or the compensation earned during the 12 months prior to retirement. (Contrary to myths fueled by the media, overtime and traffic details are not considered part of compensation and therefore are excluded from public employee retirement calculations).

Last year, the Massachusetts legislature reformed the public employee disability retirement laws. This reform was, in part, an effort to curb the practice of disabled employees being temporarily promoted on the date of injury. The reform, however, eliminated the option of calculating disability retirement allowance on the compensation for 12 months prior to retirement. The unintended consequence of this change was that disability retirees faced a dramatic reduction in their pay because of the time that can elapse between the date of injury and the date of retirement (Delay can be caused by an employee’s efforts to return to work or exhaust all medical improvement options, or by bureaucratic delay involved in processing a disability retirement application).

Sandulli Grace, PC, was very vocal in its criticisms of this aspect of the law. Thankfully, the Massachusetts legislature recognized the problem and restored the longstanding option of using last 12 months of compensation for the basis of calculating retirement allowance. (The base compensation refers to the employee’s permanent position and not any temporary position the employee may have had at the time of retirement). This amendment is retroactive to July 1, 2009. Disabled public employees who retired after July 1, 2009 should contact their retirement board to confirm that you are receiving the intended benefits of this change.

A memo explaining the new change by the Public Employee Retirement Administration Commission is attached.

Download PERAC memo