Bppa And Mcop Request That Civil Service Commision Hold Speedy Hearing On Legality Of Decision To “Band” Promotional Test Scores

The Civil Service Commission today held a pre-hearing conference in the “banding” cased filed by Sandulli Grace on behalf of the Mass. Coalition of Police (MCOP) and Boston Police Patrolmen’s Association (BPPA).  At the hearing, Sandulli Grace attorneys Bryan Decker and Alan Shapiro, along with other appellants, contested the issues with counsel for the Human Resources Division (HRD) for almost two hours.  At the end of the hearing, Civil Service Commissioners Bowman and Taylor took the action under advisement, promising to quickly rule on what action the Commission will take, if any.

From the beginning of the hearing, HRD counsel made clear the agency’s position that it is entitled to make whatever rules it would like regarding test administration and grading, and that it does not need to justify its decision to any other party.  The scope of HRD’s hubris was revealed when Commissioner Bowman asked counsel to respond to our argument that “banding” scores violates HRD’s own rule requiring that scores “be presented on eligible lists in whole numbers.”  The HRD attorney replied that the bands, expressed as “Band 7,” “Band 6,” etc., are “whole numbers.”  The retort drew audible laughter from the crowd in the hearing room.  Atty. Shapiro replied that, presumably, the rule was put into place when HRD went from establishing lists with scores expressed in one or two decimal points to rounded off whole numbers.  Therefore, under HRD’s logic, HRD could comply with its rule by expressing scores in a system of 1 to 1,000 or 1 to 10,000, and the rule would mean nothing.  Atty. Decker added that, with this logic, HRD could make the test results “Pass-Fail,” just by assigning only scores of 1 or 2.  HRD had no real counter to these arguments but continued to insist that it could do whatever it wanted in establishing lists, provided it was not arbitrary or capricious.

Under questioning from Commissioner Taylor, HRD counsel admitted that HRD had consulted with the chiefs of police regarding banding.  When Commissioner Taylor asked if the unions representing police officers were consulted, she replied they had not, suggesting there were too many of them.  Sandulli Grace clients MCOP and BPPA, who together represent almost 5,000 police officers, were never consulted by HRD.  It became rather obvious whom HRD viewed as more important in this process.

On the larger issue, the Sandulli Grace attorneys contended that banding flew in the face of both the statutory “2N + 1” system, and the overall intention of a civil service system.  Quoting from a 2005 Connecticut Supreme Court case  which rejected any deviation from the “2N + 1 system,” we contended that banding would conflict with the overall design of a governmental civil service system:

“to secure more efficient employees, promote better government, eliminate as far as practicable the element of partisanship and personal favoritism, protect the employees and the public from the spoils system and secure the appointment to public positions of those whose merit and fitness have been determined by proper examination”

Specifically, MCOP and BPPA asked the Commission to take the following actions:

  • Conduct a speedy hearing to ascertain whether HRD is acting within its authority in establishing eligible lists by banding;
  • Order HRD not to send out any eligibility lists using banding until the issue has been decided by Civil Service;
  • After the hearing, order that HRD follow its own rules and establish police promotional lists using whole numbers, unless and until it lawfully changes the rules.

In response to questioning from Commissioner Bowman, HRD did indicate that it will not be prepared to establish eligibility lists until the end of March at the earliest even absent the appeal.

In perhaps the most telling comment, when asked about the practicality of appointing authorities in large cities having to wade through dozens of names to make a single appointment, the HRD attorney replied that when HRD posted a job, hundreds of people applied.  Here we see again the ultimate goal of HRD and its friends among the appointing authorities: the conversion of a merit-based civil service system to a private sector unregulated model.

We now await the Commission’s decision on what the next step will be.  Stay tuned.

11 thoughts on “Bppa And Mcop Request That Civil Service Commision Hold Speedy Hearing On Legality Of Decision To “Band” Promotional Test Scores”

  1. What is your view of when the eligibilty list will be establish for depts. not represented by either of the unoins mentioned? I don’t think it is fair to not establish any list during this process especially if it prolongs present list. This could potentially cost someone a job if the lists are NOT established! I believe they should allow the list to be established but to continue the fight and make the adjustments as necessary. Any info you have for me I would appreciate all your feedback. Thanks!!!

    Frank McMillan

  2. There are many individual appellants besides the three unions. We are trying to get Civil Service to establish lists in the normal fashion and to rank order candidates under the traditional whole number system. I think the litigation will control whatever happens state-wide. I don’t see HRD treating one group differently from another.

    Alan Shapiro

  3. Just to reiterate what Alan said. Our appeal challenges HRD’s right to change its rules without complying with the statutory process mandated by G.L. c. 31, §§ 3 and 4. It is our position that until this process is met, the existing rules remain in place, including PAR.07(4), which requires that “[t]he examination marks shall be presented on eligible lists in whole numbers.” Because G.L. c. 31, § 25 requires that “the establishment … of the list shall be completed no later than six months after the date of such examination,” the law requires that lists be produced under the existing rules by or about April 20, 2009 (six months after the 10/18/08 test).

    I say all this not to be longwinded (although, as a lawyer it’s sort of an occupational hazard), but to point out that we didn’t file our appeal in order to force HRD to do anything with the new test other than not illegally change its rules. We’ll keep fighting the good fight.

  4. Gentlemen, Assuming the worst, that the 2008 exam list would be established sooner had we not challenged this process it does seem possible that promotions could be made off the current list that would not have otherwise been made. If this is indeed the case should we have asked that HRD refrain from making any promotions unless and until Civil Service reaches it’s decision. Is the 2005 list valid until the 2008 list is established or does it have some statutory end date? Thanks for all the help and best of luck. This whole fiasco is troubling to say the least. It does indeed shed some light as to the extent that HRD and the Chiefs are working together to circumvent civil service law(s) and it’s clear intent that any meaningful change must be publically vetted. Equally clear is the contempt that both parties view our Unions with.

  5. Right now, we’re trying not to assume anything. What we have asked is that Civil Service order HRD to NOT establish any lists by banding scores until after Civil Service reaches its decision. HRD, while opposing any action by Civil Service, has indicated that it cannot realitically issue any lists prior to the end of March even without this appeal.
    We have not taken a position in opposition to HRD issuing lists ranked via whole numbers based on the scores from the 10/18/08 tests.

  6. Alan, great job. We firefighters are watching intently, but unfortunately from the sidelines. A quick question “not really”. The way I understand this “banding” decision by Civil Service, could the following scenario be possible. Candidate “A” scores a 95 and is the only applicant in the top band. The one position vacancy calls for at minimum 3 candidates, so the next “band” is eligible. In this example, only 1 candidate is in the second band with an “83”. That means you still need at minimum, one more candidate, so you open the eligibility to the next “band”. In this band you have 15 candidates. What happens? Does Civil Service offer to assess all 17 candidates for an additional fee?($$$$) Does the hiring authority get to select 1 candidate from among the 15 in the band? Can a candidate who outscores the other candidates by more than 14 points, really be passed over for the position? Thanks.

  7. Paul,
    First off, thanks for your support. As to your question, HRD’s proposed banding would have no impact on the statutory “2n+1” scheme. So, while this is all hypothetical, yes, using your scenario, we assume that seventeen names would appear on the eligibility list in the situation that you’ve proposed. If the appointing authority chose someone in the “third” band, then the two candidates in the two higher bands would have bypass rights.

  8. Gentleman, in the HRD letter that relayed the banding change, reference was made to a careful job analysis that was conducted by EB Jacobs. This analysis formed the basis for the change to banding based on “past performance” of candidates and test scores. A check of Jacobs own protocol for a job analysis sets forth that they survey current ranks on their job duties, conduct in-face interviews, and review other reports. I have spoken to ten other agencies other than my own and none were ever contacted to participate in any job analysis process.
    EB Jacobs is the central argument in permanently fighting this blatant attempt to subvert the merit system and replace it with a mixture of affirmative action 2.0 and favoritism. In 2008, Eb Jacobs and the City of Akron, Oh. were successfully sued civilly for damages. See: http://www.firerescue1.com/fire-news/444650-ohio-firefighters-awarded-2m-in-promotion-test-lawsuit/ Note: this is the same firm involved in the regional assessment center initiative being pushed by HRD for chief and deputy chief positions.

  9. William:

    Thanks for your input. If, and hopefully when, we get to the litigation phase of this, information about how HRD developed its testing and the banding supposedly recommended by EB Jacobs will become important. For now, we’re just trying to get to that point. It remains our fundamental position right now that HRD failed to follow its own rule requiring that scores be expressed on eligible lists in “whole numbers.”

  10. What is the possibility that Civil Service would reverse their current decision and agree to release the current police and fire exams taken in October and November 2008 under the old system, and then argue their point over the change without holding up the current exams whose scores and standing has to be established no later than 6 months after exam is taken according to MGL Ch32?

  11. Hi Paul, Right now it’s HRD that’s refusing to agree to use whole numbers when establishing lists. We argued that they should do so for now, and ONLY change if they go through the proper procedure. They have categorically refused, and so we’re asking the Civil Service Commission to order them to do just that. Stay tuned…

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