Appeals Court Interprets Civil Service Requirement Of One Year Of Employment For Promotional Candidates

In Weinburgh v. Civil Service Commission & City of Haverhill (07-P-1692)(Sept. 4, 2008), the Appeals Court ruled that a candidate for promotion may sit for a promotional exam even if the candidate did not actually serve a full year in the rank immediately below the promotional position. In reaching this interpretation, the Court disregarded the interpretation of the Civil Service Commission, the agency primarily responsible for enforcing Chapter 31.

General Laws Chapter 31, §59 governs the process for competitive promotional examinations for public safety positions in Civil Service communities. The law limits candidates to police officers and fire fighters who have “been employed in such force for at least one year after certification in the lower title or titles to which the examination is open.”

The case of Weinburgh concerned the eligibility of a Haverhill fire lieutenant to sit for the captain’s exam held in November 2004. The examination was open only to lieutenants. The individual firefighter was certified on the lieutenant’s promotion list in Summer 2003, although he was not actually promoted to that rank until December. (To further complicate matters, the Commission backdated his seniority to October 2003). The issue presented by Weinburgh therefore is whether a promotional candidate must actually serve for one year in the lower rank in order to sit for the promotional exam – in other words whether Weinburgh must have worked for one year as a lieutenant prior to taking a captain’s exam limited to lieutenants. The Commission interpreted G.L. c.31, §59 to require one year of “actual service” as a lieutenant.

Courts are supposed to defer to an agency’s interpretations of the law. Yet here, the Appeals Court overruled the Commission’s interpretation of G.L. c.31, §59. The Court ruled that the one year requirement for promotions begins once the employee has been certified for the rank below the rank involved in the examination, even if the employee did not serve an entire year in the inferior rank. In other words, Weinburgh was permitted to sit for the captain’s exam, even though he did not actually work as a lieutenant for one year before the exam. The Appeals Court ruled that Weinburgh met the statutory one-year requirement because he was certified for lieutenant’s position more than a year prior to the exam (Summer 2003) and subsequent to this certification he actually worked for one year for the Department (as a firefighter or lieutenant – though the exam was limited to lieutenants).

Weinburgh’s emphasis on technical service in rank above actual service in rank stands in provocative contrast to the SJC case of Police Com’r of Boston v. Cecil, 431 Mass. 410 (2000). In Cecil, the SJC interpreted a one-year requirement under Civil Service laws – this time dealing the probationary period of police officers under G.L. c.31, §61. The SJC ruled that the police officer must actually work as a police officer for 12 months in order to obtain tenure, even if the officer had been on the Department rolls for more than one year (the SJC excluded the officer’s time spent on paid administrative leave).