Civil service appointing authorities – particularly the larger police and fire departments – regularly confront the issue of tie scores – multiple names on eligibility lists for hiring or promotion with the identical score. Civil service law permits the appointing authority to select fewer than all the tied individuals to fill a vacancy or vacancies. Unlike in a bypass case – in which the selected individual has a lower score than the top scorer – the law does not require the appointing authority to provide a reason why it chose one tied individual over another. But there are limits to the appointing authority’s discretion. It may not choose from among tie scorers in a way that violates basic merit principles.¹

The Commission recently had an opportunity to reiterate these principles in the case of Quintiliani, O’Connor, Belgrave & Chiola v. Boston Police Dept., E-25-252; E-25-274; E-25-283; E-26-027 (April 2, 2026) (https://www.mass.gov/decision/quintiliani-oconnor-belgrave-chiola-v-boston-police-dept-4226#_ftn1). The case was brought by four Boston police officers who were tied for 24th place on the eligible promotional list for sergeant. The Department promoted several other officers who were tied for 24th place, but not the appellants. The appellants did not question the qualifications of the promoted individuals; instead, they claimed that (1) the BPD unfairly let their eligible list expire without making additional promotions; and (2) the tie-breaking methods used by the BPD were biased. They raised general allegations that “City Hall” had influence on the selection of candidates, and that decisions were influenced by “phone calls” by various individuals in the BPD and City Hall who were permitted to lobby for particular candidates.

In addressing the appellants’ claims, the Commission (in a decision written by Chairman Christopher Bowman and unanimously approved by all five commissioners) noted first that none of the appellants had been bypassed, and therefore did not have an automatic statutory right to appeal the promotional process.² The Commission quickly dispensed with the appellants’ complaints regarding the expiration of the list. “Expiring on the vine” – having the eligible list expire without being considered for appointment or promotion – is a fact of life in the world of civil service, the Commission noted. In unusual cases where there is specific evidence of failure to promote because of personal animus, the Commission has intervened ³, but in this case, the Commission found a lack of specific allegations of animus.

The Commission then analyzed whether the appellants had standing under Section 2(b), which allows appeals by aggrieved individuals who make “specific allegations” that an action or failure to act was in violation of basic merit principles, and who show that their “rights were abridged, denied or prejudices in such a manner as to cause actual harm to the person’s employment status.” The answer was a definitive no.

In sum [Commissioner Bowman opined], the Appellants’ civil service rights have not been impaired and they are not aggrieved by the failure to fill vacancies prior to the establishment of a new eligible list in February 2026. Their position is no different than any other persons who are not appointed from an eligible list before it expires, also referred to as “expiring on the vine,” which is the inevitable plight of any person whose name appears at the top of an eligible list when it expires as provided by law. This common phenomenon is inherent in the civil service appointment process.

The Commission then looked into the appellants’ allegations of a flawed tie-breaking process, but determined that Section 2(b) was not an appropriate procedural vehicle to address such allegations. Without a bypass appeal or a general “aggrieved person” appeal under Section 2(b), the only option left for the appellants was to ask the Commission to investigate the matter under Section 2(a). The Commission invokes its power to conduct investigations only “sparingly …when there is clear and convincing evidence of an entrenched political or personal bias or systemic violations of the civil service law that can be rectified only by the Commission’s affirmative remedial intervention into the hiring process.”

In analyzing whether an investigation was warranted in this case, the Commission noted, first, that “in theory, tie-breaking methods are properly subject to scrutiny under ‘basic merit principles’” but that “[t]he Commission has not, however, in any previous appeal, rejected the validity of the tie-breaking methodology for making civil service appointments or promotions.” The Commission then noted that it had previously examined the BPD’s tie-breaking procedures in a 2016 decision authored by Commissioner Paul Stein, Damas v. Boston Police Department, 29 MCSR 550 (2016). In that case, the Commission dismissed the appeal, noting that the appellant’s “concerns do not rise above the speculative level and do not warrant the Commission’s further review at this time.” At the same time, however, the Commission issued a stern warning to the BPD that some of their tie-breaking methods could be problematic.

[I]t is hard to understand how the fact that picking a candidate who happens to be personally acquainted with the BPD Police Commissioner and/or knows other members of the BPD staff, over another otherwise equally qualified candidate who does not have those relationships, fits the standards of a merit-based hiring process [Commissioner Stein wrote]. Similarly, if the BPD … considers “recommendations” from BPD staff for use as a tie-breaker, that problematic practice should be carefully reviewed. More generally, to avoid any future implications of impropriety and for the sake of transparency, the BPD should consider, possibly in collaboration with HRD, whether the time has come to promulgate specific uniform standards and objective tie-breaking procedures to guide future decisions. … The Commission trusts that these concerns will be taken seriously. The Commission will continue to pay close attention to developments in this area.

Now, ten years later, the Commission expressed concern that the BPD failed to take the Commission’s advice and still uses problematic tie-breaking procedures (“it appears that the BPD chose not to heed the Commission’s suggestion to develop uniform standards when it comes to selecting from among tied candidates”). Allowing lobbying on behalf of candidates “can create the appearance of an uneven playing field and undue subjectivity,” Commissioner Bowman wrote, adding, “This is not a model process.”

Nevertheless, the Commission declined to initiate an investigation, finding ultimately that the appellants did not have “a reasonable expectation of showing that there is an entrenched political or personal bias or systemic violation of the civil service law that can be rectified only by the Commission’s affirmative remedial intervention” and furthermore, that the appellants failed to allege “with a sufficient degree of specificity that any of the candidates promoted from the tied group were promoted due to the type of favoritism or nepotism that has warranted the Commission’s intervention in the past regarding other appeals and requests for investigations.”

Despite the dismissal of the appellants’ claims, the Commission concluded its decision with what can only be described as a chastisement:

The BPD should not view the outcome here as an endorsement of its current tie-breaking method.  Rather, proactive steps should be taken to eliminate any question of undue subjectivity in the process, including, but not limited to, the practice of allowing advocacy (i.e. – “phone calls”) on behalf of certain candidates. While the Commission’s recommendations to fine-tune the tie-breaking method were not heeded by the BPD ten years ago, it would behoove them to take that recommendation more seriously today. (Emphasis in original.)

The question now is what evidence would be sufficient to trigger an investigation into the BPD’s (or anyone else’s) tie-breaking procedures? Here, the Commission relied heavily on the uncontradicted affidavit of the Police Commissioner. It will be interesting to see whether the next case brings more specific allegations on the part of the appellant(s) about the methods used to break ties.

¹ Basic merit principles include: “recruiting, selecting and advancing of employees on the basis of their relative ability, knowledge and skills including open consideration of qualified applicants for initial appointment” and “assuring that all employees are protected against coercion for political purposes, and are protected from arbitrary and capricious actions.” G.L. c. 31, § 1.

² The Commission stated: “selection from a group of tied candidates is not a bypass of a person whose ‘name appears highest’, for which an appeal may be taken as of right to the Commission.”

³ For this proposition, the Commission cited LeDuc v. City of Lawrence, after further investigation, E-23-135 (2023) (mayor’s animus); Cutillo v. City of Malden, 23 MCSR 348 (2010) (police commissioner’s personal animus).