GOOD NEWS AND BAD NEWS: NO BANDING BUT MAYBE NO CIVIL SERVICE COMMISSION
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.
25 thoughts on “GOOD NEWS AND BAD NEWS: NO BANDING BUT MAYBE NO CIVIL SERVICE COMMISSION”
It seems that Devaul has decided that the votes of civil serivce employees are not longer valuable since he more than likely will gather more support other unionized (i.e. SEIU Hotel workers and the like)or non civil service employees. To that pont he will certianly try to do as much damage to the Civil Service Process and its benefactors as possible before he is voted out of office. Since his idea of reform is not reform as we understand it surely the entire voteing cadre of civil service employee’s should support another candidate for the office. The govenor has no idea what it is like to be a civil servant which was abvious by his redecorating ideas and his cadillac purchase. He is nothing more that a elitist who has no respcet for the hard working employees of the Commonwealth.
Gov. Patrick is trying to do what Republican Administrations have been trying to do going back to the Weld Administration—-eliminate a fair forum for public servants to adjudicate their grievances.
Gov. Patrick is bending to the immense pressure being placed on him by Boston Police Comm. Ed Davis, Mayor Menino, and the Mass. Municipal Administration to silence one of the members of the Civil Service Commission who give labor a fair hearing under the Civil Service Laws. There is no doubt the the aforementioned are unhappy with Henderson’s rulings that are fair to labor but to silence him by cutting off his salary is unconscionable and shameful. Gov. Patrick is clearing saying “I do not like the way you rule…so I am taking away your pay”. Absent Commissioner Henderson and Commissioner Taylor , no one will take the time to listen to a pro se appellant, many of whom are recent Combat Veterans who are being by-passed for initial appointment to a police department in favor of the Chief of Police son or nephew, or a friend of the Mayor of a large city, or brother of a selectman in a small town. Patrick’s proposed “reforms” need to be defeated. Gov. Patrick’s proposed reform of the Civil Service Commission will create nothing but a rubber stamp for the “appointing authority” in all respects, to the detriment of the civil servant. Your are right Mr. Shapiro…..coming for a Democratic Governor this “reform” is nothing but shameful.
I am a chief steward for Local 615 SEIU – I am going to contact all my union brothers about this and to urge our union to address this problem. If the Commission is abolished then we will not have a grievance process to protect us at our jobs. Many of the union members voted for Governor Patrick as he was pro union and now he is changing his mind towards labor and the people who helped by voting for him to become governor. This type of reform is in all rights shameful.
I am told that the legislative hearing on this bill is scheduled as follows:
Wednesday February 24 at 11:15 a.m. in room B-2 at the Statehouse.
If you cannot make the hearing, you can submit written testimony to the Chairman who is Representative Steve Walsh. The address is:
Representative Steve Walsh
Joint Committee on State Administration and Regulatory Oversight
Statehouse, room 22
Boston, MA 02133
What the Appointing Authorities are trying to do to Commissioner Henderson is absolutely inexcusable. Management forces are trying to turn the civil service commission into nothing but a rubber stamp for cities and towns. Henderson has written solid and sound decisions which hold management accountable, and for that they’re attempting to force him off the commission by stopping his pay. This must not be allowed to happen. Henderson is a fair commissioner who does not always vote for the employee. He’s one of only two commissioners who is an attorney and they’re trying to force him out. The Chairman does not have a law degree and he has much less experience than Henderson.
Passing House Bill 4447 would be an outrage and an affront to every ordinary, hard working person in the Commonwealth. It would allow chiefs and municipal employers to appoint relatives, to give favors, and leaves a qualified candidate who has no such connections completely unprotected. It would also allow employees to be demoted or fired for any trivial reason. The Civil Service Commission, if it is eviscerated in this way, will be the death knell of fairness and impartiality in civil service matters.
Greetings to Alan (and Joe and Ken)
Thank you for bringing this matter to the attention of the employment law community. I have e-mailed a number of legislators, explaining my civil service background and my deep concern about the proposed legislation. I pointed out the folly of doing away with the Civil Service Commission. (That is the true intent of the legislation.) The Commission is an inexpensive option to alternate dispute resolution methods, both for the employee and the appointing authority. I noted the different appeal availability (for either party) when a party disputes a CSC appeal outcome versus other forums. No matter whether the party be management or labor, the CSC route is, in appropriate cases, so much more attractive. Thanks again.
Good to hear from you.
For those who do not know, Atty. Appel worked as counsel at HRD for many years and brings a wealth of institutional knowledge to this issue.
Greatly appreciate your input.
If this is allowed to happen, the Commission will be just a rubber stamp for management. It is important to have a broad and varied Commission in order to get well thought out and reasoned opinions.
Let hope there is a good turnout Wednesday.
“The fundamental purpose of the civil service [laws] is to guard against political considerations, favoritism, and bias in governmental hiring and promotion.” Massachusetts Ass’n
of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 259 (2001) (citing, inter alia, Cambridge v. Civil Serv. Comm’n, 43 Mass. App. Ct. 300, 304 (1997)). Ok, so here’s the political system “stacking” the Mass. Civil Service Commission against the very employees it was desgined to protect. Management trying to use the political and legislative process, in a very underhanded way, to stack the deck in its favor. This is outrageous! Do not let this happen. E-mail Steve Walsh and every member of the Joint Committee on State Administration and Regulatory Oversight. Link: http://www.mass.gov/legis/comm/j25.htm.
A civil service Commissioner first and foremost needs to have a background to judge appropriate evidence and standards of law. Commissioner Bowman is a disgrace, he votes with management almost 100 percent of the time. He disreguards evidence, testimony of credible witnesses to facilitate his own agenda. Chris Bowman needs to be removed……we do not want a rubber stamp for labor just fair educated commissioners that write their decisions based on the evidence at hand and using their training to make appropriate and fair decisions. Chris Bowman does not even have a law degree, he is simplying a man without a conscience who hurts many innocent police officers to curry the favor of management. He represents a return to machine politics where a police officer will not have the ability to think independently, without management charging them with crimes, and Bowman rubberstamping them. We need a commssioner like Henderson who writes decisions fairly, sometimes for employees , and sometimes for management, but impartiality is not what they want, well I will be there on wed. 1115am…and I will be speaking……can’t wait,
Here are Commissioner Henderson’s comments regarding Attorney Shapiro’s post. The following was submitted to the Committee in writing today.
I would like to thank Alan Shapiro for his cogent article describing the effect of this pending legislation (H4447) on the Civil Service Commission generally and upon me particularly.
A little background is called for. I previously served as a Commissioner from 2002 to 2006. I thoroughly enjoyed the beginning of that term, yet it ended with strong political overtones pervading the Commission. I applied for re-appointment to then Governor Romney at the expiration of my term in 2006, yet was not successful. Instead, Christopher Bowman was appointed to replace me. Bowman, then a Romney Republican moved onto the Commission from another position in the Romney administration.
Governor Patrick was elected in 2006 and took office in January, 2007. I applied early on for an expected vacancy on the Commission. I was appointed by Governor Patrick, to the Commission as “Chair” on June 6, 2007. I was sworn in and started at the Commission as Chair on June 15, 2007. However, almost immediately, I began to see and sense unusual signals and undercurrents. The Governor’s office kept delaying the setting of my salary and benefits. I was then told that my appointment was being “recalled” and then I was asked to resign.
I refused to resign and told them that they could only terminate me for cause. Finally at a meeting with the Governor’s staff and others, on June 27, 2007; I was told that I was being replaced as Chair by Christopher Bowman. No explanation was provided despite repeated verbal and written demands for same. My annual salary at that time should have been set at a minimum of $90,000 according to statute and HRD regulations but instead it was set at the minimum position salary of $75,000, despite my prior experience. This was simply an attempt to drive me off of the Commission. I protested and appealed the setting of the low salary to HRD but was denied a hearing.
If I did not have a family to support and tuition to pay; I would have resigned from the Commission shortly thereafter. My experience on the Commission since June, 2007 has been nothing less than a daily ordeal. Since the Governor filed this unusual legislation (H4447), I have been under much greater stress and pressure. I am very worried about my own health and the effects of this political move on my family.
I’m only human, I am not perfect, yet I stand by each one of my decisions, minority opinions and votes. I am only one of five votes on the Commission, certainly not deserving of the political pressure I have been under. I feel that I have been targeted by certain political forces, just for doing my job. My decisions require three votes to be issued and are appealable to superior court and beyond by either party or by HRD on non-discipline matters. The irony of the disparate treatment and political pressure that I have received while serving as a Civil Service Commissioner, should not be lost on participants in the civil service system.
Again, I would like to thank Alan Shapiro for his article. The circumstances behind this proposed legislation has a longer history than might originally be supposed and needs to see the light of day.
Daniel M. Henderson
Civil Service Commissioner February 23, 2010
I am writing to express my concern and disappointment at the proposed legislature noted above. The civil service has added fair and impartial decisions that provide a much needed checks an balances in our legal system. The idea that our democratic Governor has proposed cutting the salaries of two position to zero and therefore basically eliminating the positions is drastic and questionable, especially since the two people who hold these positions have come under fire for dissenting votes with regards to banding test scores and placement in the BPD. Is this what our democratic state come to? An employee gets eliminated because their interpretation of the law is different than the desired out come. Isn’t this why the civil service is made up of more than one individual?
I strongly oppose this legislation and hope that it is voted down. I am disappointed that our Governor feels this is the best way to move forward, it is not a proud moment in time for our state government.
Three cheers for Commissioner Dan Henderson. In this time of no oversite, it is refreshing to have someone doing his job following the law in his decisions. Rather than obey the laws, we eliminate the job. Massachusetts business as usual.
The duty of a governor is to uphold both the letter and the intent of the law. Gov. Patrick is attempting to circumvent rules vital to the orderly procedures that regulate hiring and career advancement in civil service. He is attempting to install cronyism in place of impartiality. Not only will such lead to unfair advantages for some, but will also lead to bribes and kick-backs for those given arbitrary power. Any savings achieved by dismissing two underpaid commissioners will be more than offset by the eventual additional costs of law enforcement and corrections.
WOW!!! Isn’t this the same Governor that created 1,300.00 new state jobs when he came into office? Let’s call it like we see it, this is a politcal payback of some kind!! Clearly commisioner Henderson is being punished for doing his job well, protecting the intrests of qualified applicants for civil service jobs.
If the Mr. Henderson loses his job and the civil service commision no longer exists, it opens the door to curruption within the hiring process for civil servants, and that is just the beginning!
I don’t know what kind of back room deal was cut here, but God help the little guy (or gal) who doesn’t have connections and wants to become a Police Officer!
If Governor Patrick gets his way, veterans who are candidates for civil service positions should consider the case of Peter G. Cyrus v. Town of Tewksbury, G1-08-107, a preview of coming attractions. Not surprisingly the vote in the case was 3 to 2, with Commissioners Taylor, Henderson, and Stein voting on the side of the veterans (and the law) and Bowman and Marquis voting against the veterans and endorsing the egregiously unfair actions of the appointing authority. Cyrus and other qualified veteran candidates, who were at the top of the civil service eligible list, were bypassed for employment as police officers in favor of others who had political connections to the employer.
This should have been a unanimous vote of the Commission. If Henderson was not there, the result would have been different and the veterans may have lost this case.
The candidates with political connections: three were employed as civilian dispatchers by the Tewksbury Police Department, one of the three listed his mother as employed by the Town of Tewksbury at the North Street School, another was a member of the Tewksbury School Committee and his mother works for the Town of Tewksbury as an administrative assistant, and his father is a Tewksbury fire fighter.
Other candidates with Tewksbury connections include the Son of the then Tewksbury Police Chief “Polygraph” Al Donovan, and a TPD Intern active in Tewksbury Athletics. Commissioners Henderson, Stein, and Taylor discovered an “intent to use whatever they could find on the more highly ranked candidates in order to get down to the Police Chiefs son, the School Board member, and the other Tewksbury corrected-applicants. “
This case represents exactly why we need a fair and impartial Civil Service Commission!
If you don’t believe me, check out this article:
“Tewksbury woman has sued the town, its police chief, and a former police dispatcher alleging that the local police tried to intimidate her to keep her from pursuing a criminal complaint against the dispatcher following his drunken sexual assault on her four years ago.”
“The dispatcher, Neil McLaughlin, 53, was found guilty of indecent assault and was fired in August from his police job.” He served 2.5 years at the Billerica House of Correction. And who is this Tewksbury Police Dispatcher? His sister is married to Tewksbury Police Chief “Polygraph” Al Donovan. McLaughlin was made a permanent dispatcher in April 2004.
So were Commissioners Henderson, Stein, and Taylor right or were Bowman and Marquis right?
Read the full CS case here: http://www.mass.gov/Eoaf/docs/csc/decisions/bypass/cyrus_peter_011910.pdf
Our son joined the U.S. Marine Corps 2 years ago, first because he loves our country and second he wanted to be one of the few and the proud and able to protect our country. Our son plans to become a police officer when his active duty is done with the Marine Corps. Now we hear that favoritism is being played to sons, relatives of selectman and veterans are being over looked for these relatives, who don’t have military and veteran preference and lack experience to fill the job of a police officer. We need a Commissioner like Dan Henderson to stand up for our veterans. Where is the outrage???? There should be more veterans complaining and acting on this. This certainly is not what my son wants or needs to see when he comes home from active duty. My son works hard in the Marine Corps and we are very proud of him and when I speak with him and tell him about this legislation to get rid of Mr Henderson, who will look out for veterans and those who qualify for jobs with the civil service, he will be very upset. This is an outrage and just should not be happening in our state. We need to keep people in our civil service who will look out for employees and not always rule with the employers, as some do to keep things smooth and hushed.
In a very sneaky and underhanded move, someone at the Civil Service Commission has been feeding Committee members so-called “statistics” which make it seem like Commissioner Dan Henderson is lagging behind in his work. True, like the other Commissioners, Henderson isn’t cranking out decisions at a breakneck pace. However, these stats are as flawed as most of Chris Bowman’s decisions. This is a nothing more than sneak attack on Henderson, a consummate professional whose work ethic is above reproach. How about the two lay about Romney appointees who didn’t hear any cases or do much work? They should look at all the Commissioner’s statistics (past and present) instead of deceptively presenting skewed numbers that don’t tell the truth about one Commissioner. The anti-Henderson forces are deceptively trying to make it seem like he doesn’t do his job, when nothing could be further from the truth. The numbers don’t tell you anything about how he has cases piled onto him. They do not reflect his other duties and responsibilities or how Henderson gets no help while others get interns and a secretary to do their work.
What has happened in our government system when someone is punished for doing the job he was hired to do?
From the decisions I have read, it appears that the rules and requirements are being applied fairly and accurately by Mr. Henderson.
It seems that Commissioner Davis and Gov. Patrick are trying to use political “tricks” to enforce their will on the Civil Servant Commission. Shouldn’t the Commission be completely independent?
Let’s support commissioners like Mr. Hendrson, not cause people like him to never want to serve in this type of position.
We will only “hurt” ourselves!
You’d think the last place politics would come into play would be at the state Civil Service Commission. This calls into question a lot of their anti-cop decisions, especially in disciplinary cases. Someone should do a statistical analysis on all of the votes. How can some Commissioners virtually ALWAYS vote one way? Sometimes they should vote for the cop and sometimes they should vote against him or her. If you have a pattern of one or two Commissioners so cosistently voting one way, it should raise your eyebrow!!!
Dan Hendreson’s decisions reflect the original intent and design of the Massachusetts civil service system: PREVENT POLITICAL PATRONAGE. He upholds the law. The average person has no idea what is being done to the system. It is rapidly eroding. Hacks such as the so called governor, the mayor of Boston, etc. are power hungry job providers. They do not care about the best qualified person for the job. They are without scruples. No one calls them into account except for the like of Commissioner Henderson. We will reap what we sow. History is full of abuses, which have ultimately been costly; political, social, cultural and financial. We have reached the bottom politcally if these power mongerers get thier way. Long live Dan Henderson and his supporters. Politicians should surround themselves with more people like Dan. Society would be better and more productive.
CIVIL SERVICE COMMISSION Decision dated: 1/19/10
PETER G. CYRUS, Appellant
v. CASE NO: G1-08-107
TOWN OF TEWKSBURY, Respondent
Decision by Commissioner Paul Stein and Majority Vote of Commissioners Stein, Henderson and Taylor allowing the appeal of Appellant Peter Cyrus of his claim that he was improperly bypassed for appointment as a police officer in the Town of Tewksbury in favor of others lower on the certification with lower Civil Service examination scores. In addition to that, Chairman Christopher Bowman wrote a strong dissent stating that, in effect, the town was right in bypassing these qualified veterans in favor of politically connected people. These veterans, who risked their lives in defense of their families, their neighbors, their state and country are deprived of the opportunity for public employment that they were qualified for the benefit of politically connected people who took no risk whatsoever.
Cyrus was among six qualified veterans who were at the top of the list with statutory veteran’s preference who were bypassed for appointment by lower scoring or lower ranking persons on this certified eligibility list. Coincidentally, those people selected for these jobs happened to be town employees or police department employees or relatives of prominent town officials, including the son of the Police Chief. However, as usual, Civil Service Chairman Christopher Bowman and Commissioner Donald Marquis rubber stamped the bypassing of these qualified veterans in favor of politically connected people. As usual, they never find any fault with the political actions of the municipalities and the appointing authorities.
Incidentally, Bowman was appointed as Chairman by Governor Patrick and Marquis was re-appointed as Commissioner by Governor Patrick. This is such an egregious case in which qualified and top-ranking veterans were abused and bypassed for the sake of political connections. This should be an example to any qualified veteran or the parent of a qualified veteran to be disgusted with Governor Patrick’s politics and anti-veteran practices. What is it about Chairman Bowman that he has such animosity toward veterans? Thank God we have at least three commissioners on the Civil Service Commission, Stein, Henderson, and Taylor, who have respect and appreciation for the sacrifice of veterans and who are willing to uphold their statutory preference.
“The Certification, from which the applicants were selected, had requisitioned to hire 8 permanent intermittent police officers.
Tewksbury actually hired only 6 officers. (Exhibits 4 & 5) The first six applicants on the list who signed willing to accept, all veterans, were bypassed; the next six applicants were submitted to HRD for approval to hire. At least five of these six selected candidates had ties to Tewksbury, one was the son of the Police Chief, one was a School Committee member (whose parents both were employed by the town), and three worked as civilian dispatchers for the Tewksbury Police Department.
Five of the six selected applicants fell into the lowest group of test scores of all candidates selected; a seventh candidate, also in this lowest scoring group, and also another a town employee, was recommended to be hired, but for was not included in the list of six names submitted to HRD.
No one on the list below the Tewksbury School Committee member and Tewksbury dispatcher group was interviewed.
Don’t believe me? Read the case on the CSC site.
Cyrus v. Tewskbury is a prime example of why we need an independent Civil Service Commission. Without Commissioner Henderson (who is the target of Gov. Patrick’s scheme to neuter the Civil Service Commission), the twisted Commissioner Bowman minority opinion in this case will become the majority and the VETERAN will be by-passed in favor of the politically connected.
So much for Veterans Preference in Civil Service positions.
Tewksbury should be ashamed of themselves! What ever happened to fairness and honor? Our vets gave of themselves and deserve a fair shake.