Superior Court Judge Bruce Henry has GRANTED the BPPA and MCOP’s Motion to Enjoin the Human Resources Division from “banding” scores on police promotional eligibility lists. We JUST got the decision. Expect a full report to be posted later this morning!
Judging from the comments we’ve been receiving, folks are understandably anxious to hear the Superior Court’s decision in our banding case. Make no doubt about it, we’re anxious too. If you want to be notified of a decision within minutes of when we get it, here’s two quick steps to take:
1. Join our mailing list – just fill in your e-mail address in the box in the upper left corner of this page. By joining, you will get an e-mail every time a new blog entry is posted.
2. Follow “SandulliGrace” on Twitter. Not going to be near a computer to get your e-mail? No worries. Now you can get notifications sent to your mobile device via our Twitter page. Just go to http://twitter.com/SandulliGrace and hit “follow.” You’ll be asked to set up an account, and make sure you enable mobile notifications. Then you’ll be notified each time we “tweet,” which I promise we’ll do the minute we get any word from the Court.
As to the banding decision, we’ve no word yet. Clearly, the judge is seriously considering the matter, and is taking his time to get it right. That can only be good news for us, as we think HRD’s violations here are plain. Like I said, as soon as we know, you will – as long as you’re signed up.
The Massachusetts Supreme Judicial Court, the state’s highest court, today upheld a 2006 ruling of the state Commonwealth Employment Relations Board (CERB) that the City of Boston unlawfully reduced the overtime compensation of Boston Patrol Officers without first bargaining with their union, the Boston Police Patrolmen’s Association, Inc. (BPPA). The SJC and CERB ordered the City, which made the unlawful change in July 2002, to “make whole” the patrol officers represented by the BPPA – which likely will cost the City several hundred thousand dollars.
Today’s SJC decision caps lengthy litigation regarding the City’s repeated violation of state and federal laws concerning overtime pay to Boston police officers. In 2000, more than 800 Boston patrol officers, represented by Sandulli Grace Attorneys Bryan Decker and John Becker, sued the City in federal court for the City’s outright refusal to pay overtime as required by the federal Fair Labor Standards Act (FLSA). The federal court agreed, and the City ultimately paid officers almost $700,000 plus attorney’s fees. In July 2002, while the federal litigation was ongoing, the City unilaterally adopted the FLSA’s “partial public safety exemption,” which lowers federal overtime payments to police officers and firefighters. While the City’s unilateral adoption of this partial overtime exemption was permitted by the FLSA, it was not by state law. Under state law, Chapter 150E of Massachusetts General Laws, a municipal employer must bargain with a union before changing the wages of employees represented by a union. The BPPA immediately demanded to bargain about this change. The City refused, even though the parties were negotiating a new contract, and instead implemented the change. On behalf of the BPPA, Sandulli Grace Attorneys Bryan Decker and Patrick Bryant filed an unfair labor practice charge with the state labor relations agency. CERB ruled in the BPPA’s favor, and the City appealed.
The SJC upheld the CERB decision on all points, finding that:
With regards to the remedy, a conservative estimate is that the City reduced overtime pay to officers by at least $100,000 per year by making the unlawful change. Damages will run back to July 2002, and the BPPA’s members are entitled to interest.
BPPA President Thomas Nee welcomed the Court’s decision. “We’re extremely gratified that the Supreme Judicial Court agreed with our position in this case. The FLSA is designed to protect the rights of people who work more than 40 hours per week and ensure that they are properly compensated. The Court affirmed that this applies to police officers as well.”
Sandulli Grace Attorney Bryan Decker, who argued the case to the SJC, said, “The City continuously, and improperly, claimed that it couldn’t comply simultaneously with the FLSA and its obligations under state law. The SJC rejected this argument as bogus, and upheld that workers are entitled to the protections of the FLSA and their Union. Given the state of our economy, this decision reminds employers that a desire to save money is not a defense to violating legal obligations. Hopefully, municipalities will learn that the only way through these challenging times is to treat unions and employees as partners rather than problems.”
READ the SJC decision at:
The Civil Service Commission today rejected appeals filed by Sandulli Grace on behalf of the Boston Police Patrolmen’s Association and the Massachusetts Coalition of Police (and companion cases filed by the Boston Superior Officers and IBPO) challenging the Human Resource Division’s decision to start “banding” scores from civil service promotional exams when placed on eligibility lists. Specifically, the Commission rejected the straightforward argument that HRD violated its own rule requiring that exam scores be listed “in whole numbers.” Instead, Civil Service decided that scores expressed in bands, each containing up to 8 points, are in “whole numbers” because the bands are numbered 1 through 7. When the HRD attorney made this ridiculous argument in the civil service hearing room, members of the crowd, including one sitting commissioner, audibly laughed. Now, apparently, it is the law, contradicting the old adage that an argument should first have to “pass the laugh test.”
In one decision the Commission ruled that individual offers are not “aggrieved” because they have not suffered “actual harm” – YET! Reading Chapter 31 (Civil Service law) to only remedy past wrongs, the Commission ruled that since no one has been yet harmed by banding, the appeals are untimely. Of course, it was our hope and desire to AVOID a situation where individuals are promoted based on banding only to have those promotions undone through an after the fact appeal. (Indeed, Counsel to HRD, while claiming that our appeal was not ripe, simultaneously argued that the Commission could not go back and undo initial hiring decisions already made because of the chaos that would result.) Unfortunately, the Commission punted rather than take the issue on headfirst.
In the second decision on our request for an investigation (as opposed to an appeal), the Commission rejected our argument that HRD had violated its own rule. Although our request only sought to require HRD to follow proper rulemaking regarding banding, the Commission nonetheless wrote a lengthy exegesis on how terrific banding really is, citing law review articles and unrelated dicta in federal civil rights cases. Amazingly, the Commission quoted Massachusetts Federal Judge Saris, who opined in a decision that “banding … seems consistent with” civil service. This is amazing because Judge Saris noted in the same case that “the attorneys have not briefed the issue,” and that “HRD has expressed some legal uncertainty as to whether the statutory framework in Massachusetts allows banding.” Without a hearing, rulemaking, or any other legal proceeding, HRD has now gone from questioning the legality of banding to making it the law of the land.
As to WHY HRD’s decision to band scores does NOT violate the “whole number rule,” the Commission held that bands “are whole numbers.” By this logic, HRD could follow its “whole number” rule by scoring exams 1-100, 1-7 (as in banding), or 1-10,000 (as it did when it used to break down scores to the hundredth of a point). In other words, the rule has no meaning. This would be comic were it not for its effect on the careers of literally thousands of police officers who arduously studied, sacrificing earnings and time with their families, expecting their efforts to be scored by the rules.
A stern dissent by two of the five Commissioners (Henderson and Taylor) pointed to the time and effort put in by test-takers with the expectation that their tests would be scored as they have been in the past: in whole numbers of 1-100. They disagreed with the majority and would order the relief requested by our clients:
That the Commission order HRD to comply with its present rules and establish eligible lists from the October 2008 police promotional examinations in whole numbers and not utilize banding or any other method.
To the extent that HRD desires to amend PAR. 07 (4)[the “whole number” rule], the Commission should then order that no such amendment become effective unless and until HRD complies with the statutory requirements of G.L. c. 31, §§ 3 and 4.
Like the indulgent parent admonishing the wayward teenager taking the family Mercedes out for a spin to “be careful,” the Commission wagged a finger at HRD that, because of the enormous new power it was conferring on appointing authorities, it had better “embark[] forthwith on an inclusive, transparent selection process to ensure effective implementation by municipalities of post-banding selection procedures.” That was what the Legislature created under the statutory “2N +1 Rule,” until HRD and Civil Service saw fit to destroy it. But we need not worry, because the decision tells us that the Commission “will not stand idly by if presented with competent evidence that unlawful favoritism was the driving force behind a particular promotional appointment.” This gives little comfort as we have watched Civil Service stand idly by while HRD makes up its own rules and the agency abrogates its statutory oversight role.
The role of the Civil Service Commission as a watchdog against favoritism and overreaching by HRD is called into question when Civil Service refuses to demand that HRD conduct rulemaking in the open – AS IT IS REQUIRED TO DO.
Needless to say, we are reviewing our options with our clients. Stay tuned…
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:
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.
The Supreme Judicial Court of Massachusetts, as we’ve indicated frequently on this blog, has issued a number of decisions that are unfavorable, and occasionally hostile, to public employees in general and public safety employees in particular. However, in Retirement Bd. of Salem v. Contributory Retirement Appeal Bd, SJC-10215 (February 24, 2009), the SJC granted a huge victory to public employees.
In this case, a public employee suffered a disabling heart attack upon being told by her supervisor that her job was being eliminated in a few months. After work and within one hour of hearing this news, the employee suffered a heart attack. She was briefly hospitalized. She never returned to work. Instead, she immediately filed for an accidental disability retirement, which generally provides 72 percent of the employee’s recent salary, pursuant to M.G.L. c.32, §7.
A public employee who suffers a mental or emotional disability as a result of a “bona fide personnel action” (i.e., a legitimate transfer, demotion, etc) is ineligible for accidental disability retirement. Here, the Retirement Board denied benefits because it claimed that the heart attack arose from news of a bona fide personnel action. The SJC disagreed, ruling that the physical, as opposed to emotional/mental, injuries that result from a bona fide personnel action remain eligible for accidental disability retirement. In other words, Chapter 32, §7 denies accidental disability retirement benefits to employees who, for instance, suffer a permanent psychological disability as a result of layoff news, but does not deny benefits if the exact same news results in a permanent physical disability.
In the decision, the SJC also affirmed that disabling injuries, to qualify for accidental disability retirement, must occur while working and not merely “at work.” In other words, the employee likely would not have been eligible for benefits had the heart attack resulted from learning at work about a family tragedy. The SJC concluded here that the employee’s injury arose during the performance of work duties given that she was ordered to participate in a meeting with her supervisor.
The Civil Service Commission has scheduled a pre-hearing conference for the appeal filed by Sandulli Grace clients Boston Police Patrolmen’s Association, the Massachusetts Coalition of Police, and Boston Patrol Officer (and BPPA Treasurer) Tom Pratt of the decision of the Massachusetts Human Resources Division (HRD) to band scores from civil service promotional exams when placed on eligibility lists. The Commission, apparently heading our call for a speedy resolution of this matter, has scheduled the pre-hearing for next Tuesday, March 3, 2009 at 10:00 a.m. Here’s the notice.
At the pre-hearing, we will press our request for a speedy full hearing, so that the Commission can determine the validity of this new process before any promotions based on banding are announced. Stay tuned…
Today’s Boston Globe has an article about the banding controversy. You can find the article here. Several of the comments in the article not only are inaccurate but also revealing. The Mass. Chiefs want more leeway in promotions:
“It’s no different than the private sector,” said A. Wayne Sampson, a retired Shrewsbury chief and executive director of the Massachusetts Police Chiefs Association. “There are a lot more factors involved in picking part of your command staff than just the ranking of the test.”
The civil service system is not supposed to be like the private sector. In the private sector, you can hire whoever you want for a job, provided you don’t discriminate in some illegal way (race, age, gender, handicap, etc.). You want to give your brother-in-law the vacant position in Sales, no problem. Your old high school chum is out of work and you want to help him out, be my guest. In the private sector, you only answer to the owners of the enterprise. In 1885, Massachusetts became the second state (New York was first a year earlier) to implement a civil service system. The goal was to eliminate cronyism, favoritism, and especially political considerations from hiring and promotion in the public sector. Sadly, some police chiefs apparently prefer to turn the clock back to the 19th century.
Some also believe, inaccurately, that banding will allow for greater diversity:
The move could also help chiefs diversify their command staff. Over the years, many department leaders have complained that the civil service exam was a stumbling block for minorities trying to move up.
“If [a minority candidate] were somewhere in the middle and someone else was slightly ahead of them, that’s the factor you could use,” said Brockton Police Chief William Conlon, whose department has no minorities in supervisor positions. “The department does need diversity.”
While diversity is undoubtedly a worthwhile goal not only in police departments but in all professions, banding does not necessarily lead to that result. If Chief Conlon intends to select a minority candidate over others within a band solely on the basis of race, he will be violating civil service precedent as well as state and federal discrimination law. In MAMLEO v. Abban, the Mass. Supreme Judicial Court rejected the Boston Police Department’s efforts to promote sergeants solely on the basis of a desire to improve racial diversity. Only where a court has found a history of discrimination and entered a remedial order can a police department use race as a factor in promotion decisions.
Ironically, historians have noted that civil service systems have worked to promote diversity, not stifle it:
“One consequence of U.S. civil service policy has been to provide a notable route for upward mobility, especially for women and blacks. “
U.S. History Encyclopedia, cited in http://www.answers.com/topic/civil-service.
Today’s Globe article, perhaps unwittingly, explains why our clients, Massachusetts Coalition of Police and Boston Police Patrolmen’s Association, have undertaken the effort to restore whole number numerical scoring to the promotional examinations.
On Friday, February 13, 2009, the Massachusetts Human Resources Division (HRD) suddenly informed police officers around the state that HRD will start “banding” scores from civil service promotional exams when placed on eligibility lists. Because this radical shift in the promotional process will make it much easier for cities, towns and chiefs to use favoritism as a basis for promotions, Sandulli Grace, PC, today filed papers to restore basic merit principles. Attorneys Alan Shapiro and Bryan Decker today challenged the proposed banding by filing an appeal and request for speedy hearing with the Civil Service Commission on behalf of Sandulli Grace clients Boston Police Patrolmen’s Association, the Massachusetts Coalition of Police, and Boston Patrol Officer (and BPPA Treasurer) Tom Pratt. You can read the appeal in its entirety by clicking here.
HRD rules require the state agency to list police officers on promotion lists in order of the “whole number” score they received on the exam. Thus, an officer who scored an “88” is listed ahead of an officer with an “87.” If the chief wants to promote the lower-ranked officer, he must justify this bypass of the higher-ranked officer in writing to HRD, and the higher-ranked officer can file a bypass appeal with the Civil Service Commission. The Chief then has to prove that there is reasonable justification for the bypass and that the bypass was and not arbitrary or capricious. This vetting and appeal process ensures that the chief must be prepared to justify a decision to promote a lower–ranking candidate to an independent third party.
A bypass does not occur, however, when the Chief selects one of two or more officers with the same score. In other words, if three officers scored “87” on the exam and the Chief selects one of them, then the other two officers have not been bypassed under the law and the other two officers have no automatic right to file a case with the Commission. Except for large communities, ties are infrequent under this established promotional process.
HRD’s new policy on “banding” promotional lists dramatically changes the promotional process in a way that explicitly leads to more unfettered decision-making by the Chief. The new banding results in large numbers of officers being “tied,” even when they score as much as seven points apart on the exam. For example, the bands HRD currently proposed for the Sergeant are as follows:
2008 Statewide Police Sergeant Exam
Legend for Score Bands
(Includes General Average Plus Preference)
6=92.92-100
5=85.84-92.91
4=78.76-85.83
3=71.68-78.75
2=66.00-71.67
1 = Failed Written and failed overall exam
Officers are automatically “tied” with everyone else in their band. Under banding, the chief can promote any officer within the band without having to justify the decision to anyone. You got a 99 and the Chief’s coffee buddy got a 93? Guess what, you’re tied. And the Chief doesn’t have to justify his decision to promote his buddy to anyone.
We believe that it is obvious that banding increases the illegal influence of favoritism and bias in promotional decision making. Unfortunately, HRD prevented police unions and our firm from stopping this dramatic change because HRD refused to hold a hearing demanded by G.L. c. 31 prior to adopting this new regulatory policy. HRD’s neglect of its statutory duty forms the basis of the appeal filed today – the failure to follow c. 31 and its own rules prior to implementing such a drastic change.
Because it is likely that eligibility lists with banded scores will appear in civil service communities throughout Massachusetts in a matter of weeks, we have asked that the Civil Service Commission conduct a speedy hearing, so that the Commission can determine the validity of this new process before any promotions based on banding are announced. As always, we’ll keep you posted.
Massachusetts public employers cannot discriminate against employees who engage in “concerted, protected activity” under G.L. c.150E, the public sector collective bargaining law. In order to prevail in an unlawful discrimination case, the aggrieved employee or union must show that (1) the employee engaged in protected, concerted activity under c.150E; (2) the public employer knew of this activity; (3) the employer took “adverse action” against the employee; and (4) this adverse action was motivated by a desire to penalize or discourage the concerted, protected activity.
In City of Holyoke, MUP-05-4503 (January 9, 2009), a member of the City’s police union was reassigned from a detective to a patrol position just two months after filing a grievance against the City. The police union filed a charge, claiming that the reassignment retaliated against the officer for filing the grievance. Based on the above test, CERB ruled that the union provided ample evidence of the first two elements, but failed to do so on the latter two. The filing of a grievance counts as concerted, protected activity under c.150E, because the grievance, even if from an individual attempts to enforce a collectively-bargained agreement. The City agreed that it knew about the grievance, thereby meeting the second criterion. However, the Commission ruled that the Holyoke Chief’s involuntary reassignment of the grievant from the detective to uniform patrol did not constitute an “adverse action.”
CERB acknowledged that a reassignment to a less preferable position or to a position with reduced benefits is an “adverse action.” However, the union’s argument that the transfer constituted discrimination was complicated by the grievant’s stated desire to leave the detective division (although he requested a transfer back to narcotics, where he previously worked) and his mediocre performance in the detective and narcotics divisions (at least as viewed from the Chief’s admittedly biased perspective). In somewhat similar circumstances, the U.S. Supreme Court ruled that a personnel action is adverse if “a reasonable employee would have found the challenged action materially adverse, which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge [ ].” Burlington Northern & Santa Fe Railway v. White, No. 05-259 (June 22, 2006).
CERB further rejected the union’s argument that the reassignment was adverse given subsequent, mild taunts of co-workers. CERB dismissed these comments (such as resetting the screensaver to mock the grievant’s new assignment) as mere jocular, “subjective opinions.” Given that the opinion of other officers is highly relevant to determine whether the reassignment may be reasonable viewed as adverse, CERB’s finding here is questionable. CERB may just have been disarmed by the deprecating tenor of the other officer’s comments.
As to the last criterion, the Commission ruled that the two-month gap between the grievance and the reassignment was insufficient to establish even an inference that the Chief’s motive was retaliatory.
In the future, unions and employees aggrieved by a change from a special assignment may wish to emphasize more concrete differences between the positions, such as the flexible schedules, increased overtime opportunities, and the like. Further, they may wish to produce independent evidence that the grievant is capable of performing the job that he or she seeks.
